Findings Of Fact Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught. From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding. On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home. Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited. By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued. The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman. During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home. Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home. Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol. As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition. There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding. Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their physical positioning which would not admit a particularly clear view of the incident. Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son. As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
The Issue The issue is whether Respondent should be dismissed from his employment as a school teacher for just cause pursuant to Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Background Petitioner is the duly appointed Superintendent for HCSB. He is responsible for the administration and management of the Hernando County School District. HCSB is the governing body of the Hernando County School District. It is charged with the responsibility to operate, control, and supervise all free public schools in Hernando County, Florida. At all times material here, Respondent was, and continues to be, an employee of the HCSB as a member of the instructional staff pursuant to a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with minor students. Apart from the allegations raised in this case, Respondent has been a satisfactory employee. No employee, agent, or representative of the HCSB was aware of any allegations of inappropriate sexual conduct between Respondent and any student until law enforcement officials notified school officials about an investigation a few days before Respondent's arrest. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher. He eventually became the technology resource coordinator at Powell Middle School. Respondent served as director of an after school program (ASP) at Powell Middle School beginning in January 1995. HCSB and the local YMCA sponsored and funded the ASP until sometime in the spring of 1996. Respondent was in large part responsible for the successful creation, organization, and operation of the ASP. The ASP began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after school activities, like swimming lessons, took place on the premises of the YMCA. The ASP participants rode a school bus from the school to activities in remote locations. Respondent directed the ASP initially from his classroom in the science building of Powell Middle School and subsequently from a room used as a computer lab, which was adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the ASP were stored there. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to the cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp, in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. C.B. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. At that time, C.B. was not one of Respondent's regular students. He was a participant in the ASP. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the ASP. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. However, with help from his counselors, and encouragement from Respondent, C.B. stayed at camp for eight weeks. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the ASP. Respondent regularly drove C.B. home following the close of the ASP. Respondent worked one-on-one with C.B. to improve his grades. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B.'s grades improved markedly. Respondent encouraged C.B. to set high school graduation as a goal. C.B. testified that, during the after school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. They traveled in Respondent's pick-up truck and shared the expenses of the trip. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Respondent and C.B. paid their entrance fee and entered the theme park as soon as it opened for business. With so many people around, there was no expectation of privacy in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Families. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. C.B. attended camp at a reduced rate again in the summer of 1996. He went to Vermont early so that he could earn money working at camp before it opened. During the summer, Respondent bought C.B. a portable C.D. player, C.D.'s, and some articles of clothing with the understanding that C.B. would repay Respondent later. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996 for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead High School. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons, as he had for those of other young people. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent that weekend because he was on restrictions at home. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. After a confrontation with his parents, C.B. ran away from home. On September 21, 1996, Respondent went to C.B.'s home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor, and their son and daughter, were close friends of Respondent. The son, Sean O'Connor, was away at college. The daughter, Jennifer, still lived at home. C.B.'s parents agreed to let C.B. live with the O'Connors on a trial basis, provided that C.B. remain on restrictions within the O'Connor home for a period of time. The O'Connors did not live within the Springstead High School district. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Respondent purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his step-brother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996 was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connor residence, then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connor home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On Thursday, October 24, 1996, C.B.'s father decided that he wanted C.B. to move back home. When the father arrived at the O'Connor's home, C.B. attempted to have a heart-to-heart talk with his father. When the father insisted that C.B. return home, C.B. ran out into the yard of the O'Connor home. The father caught up with C.B. and, during the ensuing struggle, repeatedly punched C.B. in the face. The O'Connors called the police. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with the O'Connors' daughter. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with her. Because he would not go home with his stepmother, C.B. was taken to a youth shelter. He ran away from the shelter that night. C.B. continued to attend school while on run away status. On October 29, 1996 and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Families each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father's made his first court appearance, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.3 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct, involving masturbation of Respondent's penis, in Respondent's science classroom or the computer room at Powell Middle School during after school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. A.P. Respondent met A.P., a sixth grade student at Powell Middle School in 1995 as a participant in the ASP. A.P. was a very out-going person, who demanded attention. At times, Respondent, as director of ASP, had to discipline A.P. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during ASP. Respondent frequently gave A.P. a ride home after ASP. Respondent offered A.P. a scholarship to attend Camp Sangamon in the summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the ASP. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley, interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Hernando County School Board enter a Final Order finding Respondent not quilty of improper sexual conduct with C.B. and A.P., and reinstating Respondent to his teaching position, with back pay, less interim earnings, benefits, and no break in seniority of years of continuous service. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998.
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
The Issue The issue in this case is whether there is just cause for a ten-day suspension of Paula Prudente's employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Prudente started her employment with Petitioner in 1978. She was employed pursuant to a professional services contract. Respondent is currently a reading teacher at John I. Leonard Community High School. Terry Costa ("Principal Costa" or "Costa") is the principal at John I. Leonard and has been since 2005. She serves as Prudente's supervisor. During Prudente's employment, Costa received complaints regarding Respondent's email use. Teachers complained to Costa that Respondent did not use the email system according to the School District guidelines. On or about September 27, 2007, Costa gave Prudente a directive to refrain from communicating with the chair of the Reading Department in a negative manner through email and to direct concerns to Assistant Principal Howard or Costa.1 Prudente failed to adhere to the directive. Consequently, Costa issued Prudente a verbal reprimand with written notation for failure to follow administrative directives regarding the proper use of email on January 8, 2008. The January 8, 2008, verbal reprimand with written notation for failure to follow the administrative directive regarding the proper use of email during the school day stated: Specifically, you were given directives on September 27, 2007, to refrain from communicating with the chair person of the Reading Department via email, in a negative manner, regarding Reading Department concerns. You were further directed to email any and all department concerns to Terry Costa or Diane Howard. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will result in further disciplinary action up to and including a recommendation for termination. Prudente signed the verbal reprimand on January 9, 2008. On October 1, 2008, Respondent emailed the faculty using "1361" without prior approval.2 Prudente's actions were contrary to the February 6, 2007, prior directive Principal Costa had given her to get permission before sending school-wide emails. On October 8, 2008, a Pre-Disciplinary Meeting was held. During the meeting, Principal Costa reminded Prudente that she had been directed not to email the faculty without going through Administration. Respondent's January 8, 2008, verbal reprimand for improper emails during the school day was discussed. At hearing, Prudente admitted that she had been told not to email the faculty by "1361" without going through administration, but she emailed anyway because the CTA Office had called her to help get teachers to vote. She said, "I know, I wasn't suppose to email the whole faculty, but it was for voting, contract voting I remember." Prudente was reprimanded on October 14, 2008, for violating the directive by Principal Costa. The written reprimand, which Prudente signed, stated: You failed to follow the administrative directive by continuing to use the school district email in a negative manner. You continued to email the faculty using the 1361 mail without an administrator's permission. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will be considered gross insubordination and will result in further disciplinary action, up to and including a recommendation for termination. On November 4, 2008, Respondent sent some co-workers emails with cartoons depicting President-elect Barack Obama in a negative fashion. The politically charged emails offended several of the recipient staff members, who reported the offensive emails to Principal Costa. Retha Palmer, a math teacher, was one of the recipients of the November 4, 2008, email. She was offended by the content of the email. She responded to the email by saying, "I was wondering why would you send this to me? I thought we were friends. Are you confused? These cartoons seem to be very insulting to me, especially when I have a much different belief of Senator Obama. . . . If you can't or won't stop then maybe you should simply seek other environments for this type of harassment." Principal Costa provided the information about Prudente's email use to the Director of Employee Relations. Subsequently, District Police Officer Ezra Dilbert ("Dilbert") was assigned to investigate the allegations against the Respondent. Numerous other emails unrelated to work that Prudente sent were discovered but the School Board's Petition fails to include adequate charges of all the emails. Dilbert's report concluded that Prudente violated the School Board's policies regarding Employee Use of Technology and Political Activities on School Board Property. The matter ultimately was brought to the attention of the School Superintendent, who by letter advised Respondent that a determination had been made that there was "sufficient evidence to warrant [her] suspension without pay," and that he therefore would recommend such to the School Board. The School Board followed the School Superintendent's recommendation, and Prudente timely requested an appeal of the disciplinary action.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order rescinding the ten-day suspension with back pay. DONE AND ENTERED this 24th day of January, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day January, 2011.
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
