The Issue The issue in this case is whether the district school board has just cause to dismiss the Respondent from employment, pursuant to section 1012.33(1)(a), Florida Statutes.
Findings Of Fact Petitioner first hired Respondent in January 1990 as a substitute teacher. In 1992, Petitioner changed Respondent's status to a permanent teacher. Respondent began teaching at Miami Coral Park Senior High School in January 1996, but left from 2000 to 2004 to teach in Collier County. Upon return to Petitioner's school system for the 2004-05 school year, Respondent was assigned to a different high school, but later transferred to Coral Park when this school needed a basketball coach. In addition to coaching basketball during the 2008-09 school year, Respondent co-taught a math class. One of Respondent's math students was J. V., who was born on April 10, 1991. She started attending Coral Park Senior High School mid-way through her sophomore year in 2008 after moving to Miami in August 2007. She turned 18 in the spring of her junior year and graduated from Coral Park on June 10, 2010. After graduating, J. V. enrolled in a local community college and published a novel that is sold by Barnes & Noble bookstores. During the 2008-09 school year, J. V.'s contact with Respondent involved typical student-teacher interactions in the classroom, hallways, and other school settings. They had exchanged cell phone numbers and spoke on the phone once or twice per month and texted each other with the same frequency. The record does not describe the nature of these communications, but the record fails to suggest any impropriety in the relationship during J. V.'s junior year. During the 2009-10 school year, J. V. was not assigned to any of Respondent's classes, but she began to visit him in his classroom in the morning before school started. The frequency of these visits varied from zero to three times per week. During these visits, J. V. and Respondent talked about her family, her social life, and some of her medical issues, including the fact that she was being treated for depression. J. V. also told Respondent that she might have ovarian cancer, although she later learned that she merely had a cyst. While attending Coral Park, J. V. was living with her aunt, who had become her legal guardian. J. V.'s relationship with her aunt was strained at times. J. V.'s mother was living in the Dominican Republic, and her father, with whom her mother did not wish her to live, resided in New York. During the 2009-10 school year, J. V. and Respondent exchanged numerous cell phone calls and texts, at nearly all hours of the day and night. Although J. V. initiated most of the calls and texts and Respondent did not respond to all of her calls and texts, Respondent never asked her to stop calling and texting him. Their relationship intensified in October or November of J. V.'s senior year. J. V. has testified that she and Respondent had sexual intercourse. Respondent testified that they did not. Neither witness is a model of veracity. J. V. embellished her story with dates that did not occur and was not perfectly clear in her recollection of the details of Respondent's condominium and tattoo. As noted below, Respondent repeatedly encouraged J. V. not to testify, to avoid being served with a subpoena, and, if served, to ignore the subpoena. Regardless whether sexual intercourse took place, the relationship between J. V. and Respondent, by the end of 2009, became excessively intimate for what is appropriate between a teacher and a student and included some form of sexual activity. A series of texts from Respondent to J. V. in late March or early April 2010 reveal the intimacy that had arisen between them: "I wanted 2 jump u," "2 many eyes!," "Muah," "Im in da gym if u can pass by," "It would have been hard," and “I'l b here." The time devoted to remote communications between Respondent and J. V. provides some basis for assessing the nature of their relationship: from October 2009 through November 2010, Respondent and J. V. exchanged over 1600 texts and consumed over ten hours in phone conversations. Without success, Respondent tried to explain the more incriminating of the texts sent in March or April 2010 from his cell phone. Respondent testified that these texts were sent by an unauthorized user of his phone, probably a member of his basketball team. It is difficult to understand why a player would risk the wrath of his coach, but the absence of any response from J. V.--either to the principal or Respondent-- following receipt of the first of these texts suggests that the relationship of Respondent and J. V. had already involved some form of sexual contact. One also finds indirect proof of an intimate relationship in the conduct of Respondent following Petitioner's decision to initiate dismissal proceedings against him. To credit Respondent's version of events, for the sake of discussion, he was confronted by a student's accusations of sexual intimacy that were a total fabrication. His response was to encourage her to engage in more dishonesty, rather than merely to tell the truth. Even if Respondent's version of events concerning the lack of intimacy were credited--and it is not--his subsequent conduct, as amply documented by numerous texts discussed in detail below, constitutes a startling lack of honesty in professional dealings and disregard for the mental health of a former student. Shortly after receiving an allegation that Respondent was engaged in a sexual relationship with J. V., on April 9, 2010, Petitioner removed Respondent from Coral Park and placed him on alternative assignment in a district office. By letter dated April 9, 2010, Petitioner advised Respondent of the nature of the charges, including the initials of the student, and ordered Respondent not to have any contact with the complainant or witnesses with an intent to interfere with the investigation. On April 10, 2010, Respondent and J. V. met at a club known as Mama Juana's; according to both of them, the meeting was by chance and little was said. However, ignoring the directive not to speak with witnesses, Respondent told J. V. that he was being investigated for having a relationship with her and showed her a letter from Petitioner that, supposedly, Respondent happened to have with him at the time of this chance meeting. There is insufficient evidence to find that Respondent and J. V. are lying about the circumstances leading up to the meeting or what was said during it. By letter dated June 4, 2010, which was delivered to Respondent during a conference-for-the-record held on that date, Petitioner again ordered Respondent not to contact any of the parties involved in the investigation. By letter dated August 25, 2010, Petitioner advised Respondent that the Superintendent would be recommending to the School Board, during its meeting of September 7, 2010, that it suspend Respondent without pay and initiate dismissal proceedings against him. By letter dated September 8, 2010, Petitioner advised Respondent that the School Board had taken these actions. Upon receipt of the September 8 letter, Respondent testified that he resumed communicating with J. V. who, by this time, had graduated from high school. In fact, Respondent had received a call from J. V. on September 5 and had spoken with her for 70 minutes until nearly midnight that night. On October 5, J. V. again called him, and they talked for 41 minutes. Other lengthy calls--each about 15 minutes--were initiated by J. V. on October 16, 2010, and January 6, 2011. However, there were few, if any, communications between Respondent and J. V. for five months following their meeting at Mama Juana's on April 10. On September 11, 2010, Respondent texted J. V.: "I got suspended w/o pay. Basically fired!" J. V. replied, "Whoa! Wait, now what?! Hon?" After a couple of more exchanges, in which Respondent stated that he would have to go to trial, J. V. asked, "Is there anything that I can actually do to help you out?" Respondent's reply: "Of course. No matter what happens dont show up if they talk 2 u. Not even if they suebpena [sic] u. They cant do anything if [sic] 2 u dont go." J. V. replied, "Anything there is to do, I suppose, i'll do to help you out. I dont want you to stay in this mess. . . . I still care about you tons, I just wanted you to know that :p." This is a remarkable exchange of texts. Respondent baldly asked J. V. to ignore a subpoena. J. V. scrupulously conditioned her willingness to help with "I suppose." Here, Respondent was asking J. V. to behave dishonorably, and J. V., his former student, displayed some misgivings, as she apparently was wrestling with her loyalty to Respondent and her desire to behave honorably. This is a repulsive perversion of the role of the educator. Although J. V. was no longer a student in Respondent's school, Respondent was still a member of the education profession, and, in his dealings with J. V. and Petitioner, he was continuing to deal with a matter that involved the discharge of his professional duties. On September 18, 2010, Respondent initiated another series of texts, but these involved unremarkable matters, such as how J. V. liked college and a job that she had recently started. On September 24, 2010, J. V. initiated a series of texts with "Hello lost :p." Respondent answered, "Hey, me? Cabrona since now u have a bf [boyfriend] u dont have time 4 me!" When J. V. texted that she was "not afraid of the dark, im just afraid of staying alone, period," Respondent responded, "I m not offering any services any more." Respondent testified that he was referring to math services, but, given the circumstances, this explanation is impossible to credit. On the other hand, the services were as likely those of a trusted counselor as of a sexual partner. The text of J. V., however, displays the vulnerability of Respondent's former student, even though nearly one year had passed since the intensification of their relationship to inappropriate levels. The next day, Respondent renewed the texting exchange. J. V. texted that a certain singer "literally places you in my head." Respondent answered, "Thats a good place 2 b. I thought u didnt anymore." J. V. declaimed that she thinks too much, and Respondent answered, "Then why havent u let me c u [see you]?" J. V. replied, "Because i know that is all I am gonna be allowed to do, just see you. And I don't know if that's okay with you." Respondent responded, "It be nice 2 cu though. Even 4 a short while." J. V. agreed, and Respondent replied, "Since now u r da complicated 1 u let me know when." J. V. promised she would and quickly asked what Respondent was up to. Respondent texted, "Let me know if they try 2 get in cotact [sic] w/u? They should b setting a date 4 da hearing soon." Injecting the same element of doubt that she had raised when she offered, on September 11, to help Respondent, J. V. texted, "I seriously doubt that [they will get in contact with me]. But i'll let you know in case they do, i suppose (emphasis supplied)." These texts lend support to the finding that the relationship between Respondent and J. V. was inappropriately intimate during her senior year. It appears that one of them broke if off, possibly over the objection of the other. J. V.'s second use of "I suppose" revealed again her ambivalence about the situation in which Respondent had placed her in asking her not to cooperate with Petitioner's prosecution of its case against him. As J. V. continued to wrestle with her loyalty toward Respondent and unwillingness to behave dishonorably, Respondent steadfastly toyed with her emotions, such as by saying that it felt good to be in her thoughts, and he did not think she thought of him anymore. The next day, after midnight, Respondent renewed the text exchange again by texting, "143." He explained that this was beeper code for "i love you." J. V. replied with a beeper code consisting of the less-intense message, "thinking of you." Except for a congratulatory text, probably for the publication of J. V.'s novel, the next text exchange took place on October 13, 2010, in which J. V. apologized for calling so late, but wanted to know if Respondent could meet her the following night. They agreed to meet instead after lunch on the following day. The following day, they agreed to postpone the meeting until the following week. On October 15, 2010, the Administrative Law Judge issued a Notice of Hearing, setting the final hearing for January 26, 2011. As noted above, a lengthy telephone conversation between Respondent and J. V. took place the next day. On October 26, 2010, Respondent texted J. V.: "My lawyer friend said that 4 da subpoena they have 2 give it in ur hand. So if y dont answer the door if they show up, they cant leave it there. Nd if someone asks y if y r [J. V.] simply say no." As they exchanged texts about a basketball game that was being played, J. V. texted that she preferred baseball, and Respondent replied, "Bat nd balls huh?" J. V. answered "Lol [laughing out loud] :p silly!" She accused him, in Spanish, of a bad thought, and Respondent disingenuously asked, "What did i say?" Then he texted, "Lol." This series of texts represent a remarkable confluence of Respondent's inducing J. V. to dishonesty and engaging in sexual teasing. The remark about a bat and ball was a reference to male genitalia. Surprisingly, Respondent did not deny the sexual connotation of this text, but somehow tried to dismiss it merely as a joking "sexual innuendo." The freedom that Respondent felt to engage in sexual innuendo with a former student betrayed the inappropriate intimacy of the relationship that they once shared--while she was still a student. J. V. initiated a text exchange of Halloween greetings on October 31. On November 8, 2010, J. V. initiated another text exchange by asking how Respondent was doing. He asked how school, work, and her boyfriend were. J. V. typed that all were fine, and Respondent replied, "I m happy 4 u!" However, J. V. texted that there "are certain things that i have to deal with." Respondent texted her to call him. On November 17, 2010, Respondent initiated another text exchange in which he again asked about work, school, and her boyfriend. J. V. replied that all was fine, but her father was in the hospital. The next day, J. V. texted Respondent: "I really have to speak to you but i'll do it after i get out of class:( im so sorry." When Respondent texted her to explain, J. V. responded, "Because im really placed against the wall." Respondent answered: "What do u mean. I m the 1 that has lost everything. Nothing could happen 2 u if u say nothing happened! What r u thinking about doing? Destroying my [rest of message lost]." J. V. replied, "Omg [Oh, my God]! Screw you for saying that as if you'd know me that little to ever think that's something i'd consider doing to you!" She added, "I'll call you once i get home, at 9." Respondent added that he was watching a football game in a bar and "This is killme though. Please let me know!" J. V. responded that, when Respondent had some time to call, he should do so. With this text of apology, J. V. was informing Respondent that she had resolved the dilemma in which Respondent had placed her, and she had decided to tell the truth, rather than behave dishonorably. Casting his professional obligations aside, Respondent tried to dissuade her from telling the truth by turning the focus to himself and his need for her to lie and cover up. Obviously, Respondent's plea for J. V. to say that nothing happened implies that something happened. And the something had to be substantial--i.e., sexual contact, rather than merely excessive texting between a teacher and student--for Respondent to have felt the need to have J. V. conceal the truth. The next day, Respondent initiated a text exchange by stating: "Sorry 4 my reaction but please put urself in my shoes 4 da past 7 mos. I've lost everything that i valued nr u r worried about ur fam finding out. Idk wh [sic]." J. V. did not respond to this text. Obviously, this text was not an apology for asking J. V. to behave dishonorably. Instead, Respondent asked J. V. to identify with his situation. He was sorry merely for having lost his composure and possibly alienating J. V. On November 26, 2010, J. V. initiated a text exchange about holiday shopping. The next day, evidently in response to a telephone call, Respondent texted: "I cant get mad at u. I m just scared out of my mind about what the outcome could be! Thank you 4 assuring me." Three days later, Respondent texted birthday wishes to J. V. On November 30, 2010, J. V. suggested that they get together and have lunch "one of these days." Respondent agreed, but no date was set. On December 1, 2010, J. V. texted Respondent, as well as a number of others, that her book was available for purchase, and he texted congratulations. On December 14, 2010, J. V. texted a friend: "I'm alright most of the times lol. Having a bf has helped me a lot. I'm not alone anymore missing the teacher :(" What this text lacks in detail it makes up for in candor. It is the most direct evidence of the emotionally vulnerable condition of J. V. immediately after Respondent insisted that they stopped seeing each other in April 2010. J. V. initiated the next text exchange on January 4, 2011, when she sent new year's greetings to Respondent. When she asked how he was doing, Respondent replied, "I m ok but getting very anxious over the hearing coming up soon!!" J. V. texted that no one had been in touch with her, but Respondent assured her that she would get something soon. He asked her, "Do you have any idea what you are going to do for the hearing?" J. V. answered, "I'm not gonna do anything." Respondent replied, "We'll talk before then." On January 5, J. V. called or texted Respondent, who replied for her to call him that night. She texted that she would, and he responded, evidently in reference to a phone message, "What are you fuzzy about?" J. V. answered: "The lawyer that always calls from the school board called me not too long ago, that's all." When it became apparent that J. V. could talk then on the phone, the texts ended, evidently so Respondent and J. V. could talk on the phone. As noted above, a lengthy telephone conversation took place between Respondent and J. V. the next day. Sometime during January 2011, J. V. and Respondent spoke by telephone, and Respondent warned her that the authorities would be able to retrieve her text messages. One may safely infer that Respondent was unaware previously of the availability of such data or the ability of Petitioner to supplement its pleadings to add as grounds for dismissal acts and omissions taking place after the initiation of the case against him.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment on the ground of misconduct in office. DONE AND ENTERED this 3rd day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850)488-9675 Fax Filing (850)921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2011. COPIES FURNISHED: Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Christopher La Piano, Esquire School Board Attorney’s Office School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993. WILLIAM J. KENDRICK 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 19th day of April 1993.
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.
Findings Of Fact Dwon Ballard attended North Miami Junior High School from September 1983, to January 1984, and from May 1984, until his reassignment on November 29, 1984. During these times, Dwon Ballard was involved in eight incidents of disruptive or rebellious behavior, including cutting class, truancy, leaving school ground without permission, defiance to a substitute teacher, fighting, and returning to school while on suspension. The final incidents which resulted in reassignment involved a fight on November 1, 1984, which resulted in a five day suspension and a fight on November 19, 1984, during which Dwon Ballard struck another student in the face without warning or provocation. This last incident resulted in a ten day suspension and a decision to reassign Dwon Ballard to the Miami Douglas McArthur Senior High School-North. Reasonable attempts were made to assist Dwon Ballard in resolving his problems. These attempts included counseling with Dwon Ballard and conferences with Ballard's mother and the students involved. The other students involved were initially disciplined, but were not reassigned to the opportunity school. The other students involved were responsible for the first fight in that they attacked Ballard. During the intervening time, they continually threatened Ballard, called him names, harassed and otherwise antagonized him. It is however admitted that Ballard made the first physical contact in the second fight. A review of Ballard's report card while attending Miami Douglas McArthur Senior High School-North shows that he has passing grades in all subjects. Prior to reassignment, Ballard was receiving a satisfactory mark in some subjects at North Miami Junior High School.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter a final order assigning Dwon Ballard to Miami Douglas McArthur Senior High School-North. DONE and ENTERED this 4th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of March, 1985. COPIES FURNISHED: Mitchell Horwich, Esquire 7900 N.W. 27th Avenue 149 West Plaza, Suite 210 Northside Shopping Plaza Miami, Florida 33147-4796 Mark A. Valentine, Esquire Assistant Board Attorney Dade County School Board 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Fred J. Miller, currently holds Florida teaching certificate number 150969, covering the areas of elementary education, business education and administration, which is valid through June 30, 1992. At all times material hereto, respondent was employed as a teacher at Miami Park Elementary School in the Dade County School District. In the summer of 1990, S.L., a minor female student, was in respondent's fourth grade class at Miami Park Elementary School. On one occasion during such term, respondent observed that S.L. was not doing her school work and was instead drawing, contrary to instructions he had given earlier in the day. In response, respondent grabbed the paper upon which S.L. was drawing, crumpled it up and directed S.L. to stand in the corner. S.L. then opened the top of her desk to put her books away, and while her head was under the desk top respondent pushed the top down striking the back of S.L.'s head. Such contact apparently hurt S.L., since she then began to cry, but there was no compelling proof offered at hearing from which any reasonable conclusion could be drawn regarding the severity of the blow or any injury sustained. S.B. a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. On two occasions during such term, respondent made physical contact with S.B. The first occasion arose when S.B. and the other students in the class were lined up to go to lunch. During such time, S.B. was apparently talking and whispering to other students and respondent grabbed him by the arm, above the elbow, yanked him out of the line, and made him walk on the side of the line. S.B. averred at hearing that such action hurt and embarrassed him; however, there was no compelling proof regarding the severity of any harm or the degree of any embarrassment beyond what one would reasonably expect from having been disciplined. The second occasion arose when S.B. was apparently not doing his school work and was instead drawing. In response, respondent tore up the drawing, grabbed S.B. by the ear, pulled him up from his seat, and made him stand in the corner. Again, there was no compelling proof regarding the degree of harm, if any, occasioned by such contact, and S.B. offered no testimony that such action on respondent's part caused him to suffer any embarrassment. A.S., a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. At hearing, A.S. offered testimony regarding two occasions on which respondent made physical contact with him. The first occasion arose when A.S. was talking when he should not have been, and respondent pulled him by the ear and made him stand in the corner. There was, however, no proof at hearing that such conduct harmed or embarrassed A.S. The second occasion arose when the respondent "jacked up" A.S.; a phrase used to describe respondent grabbing the front of A.S.'s shirt and pulling him up. No proof was offered regarding the circumstances which surrounded this incident, and no showing of harm or embarrassment to A.S. In addition to the foregoing incidents, S.B. and A.S. also offered testimony regarding other occasions during the summer of 1990 when respondent made physical contact with other students in their fourth grade class. In this regard, S.B. offered testimony that respondent "snatched . . . [E.W.] . . . out of line about two times and yanked his ear too." And, A.S. offered testimony that respondent also "jacked up" other students when they misbehaved in class. There was, however, no proof offered regarding the circumstances surrounding these incidents, and no showing that such students were harmed or embarrassed by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which finds respondent guilty of having violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and thereby Section 231.28(1)(h), Florida Statutes, with regard to his conduct toward S.L.; which imposes the penalty recommended in paragraph 5 of the foregoing conclusions of law; and, which dismisses all other charges against respondent. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of February 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1992.
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact In the summer of 1981, Christopher Max Grix (Chris), a tenth-grader, was one of some 1,100 students enrolled in the combined Miami Beach Senior High School-Nautilus Junior High School summer school program. On Monday, July 20, 1981, George Thompson, a security man at the school, took Chris, John DeBlasio, and a third youth to the school office. Mr. Thompson told Solomon Lichter, the principal, and Assistant Principal Nockow, that he had seen these three boys shoving one another. As a result, each student received a three-day suspension, ending with the opening of school on Thursday, July 23, 1981. At about 7:20 on the morning of July 27, 1981, Chris and John DeBlasio had another "confrontation." When it ended, Chris fled in his car to the principal's office. There he reported that some "niggers and spics" had jumped him on school grounds along 42nd Street, and complained that the principal had not done "a damn thing about it." Although Mr. Lichter asked Chris to remain seated, Chris jumped up and left the office after he had been there only two minutes. While Mr. Lichter summoned the police, Carlton Jenkins, Jr., another assistant principal who was in an office near Mr. Lichter's, followed Chris and watched him drive away recklessly, stop near some students, and emerge from the car with a tire iron. Chris asked John DeBlasio's brother Alfred where John had gone. Wielding a tire iron, Chris shoved Alfred and threatened to kill him. He made the identical threat to Mark Allen Uffner, and also shoved him. After the tire iron was back in Chris's car, and after Alfred and George Korakakos had subdued Chris in a fist fight, Uffner ran to meet Assistant Principal Jenkins and Principal Lichter as they approached from the school office, and gave them a full report. Chris was gone by the time the police arrived. Later on the morning of July 27, 1981, Messrs. Lichter and Nockow left the summer school grounds for the campus of Miami Beach Senior High School to look for some walkie-talkies. While they were there, Chris, his older brother, and a third young man arrived. When Chris's older brother asked what had happened, Chris gave his version in colorful language. Mr. Lichter told Chris he was going to suspend him from school if he did not calm down. After Chris continued complaining about "niggers, spics, and the school principal," Mr. Lichter announced that Chris was suspended and ordered him to stay off school grounds for ten days. The trio left the campus of Miami Beach Senior High School but later on, at midday on July 27, 1981, Alfred DeBlasio saw Chris and the others on the summer school (Nautilus Junior High School) campus near 42nd Street, with knives and crow bars. Chris and traveling companions were equipped with ax handles, and were threatening Uffner, among others. A security man told Mr. Jenkins that a gang of students was headed toward Chris's car behind the cafeteria. Mr. Jenkins called after Chris's car as it left, ordering Chris not to return to school for the rest of the day.
