The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 27th day of June, 2000.
The Issue : The issue to be resolved in this matter concerns whether the Okaloosa County School Board (Board) (District) (Petitioner) has just cause to terminate the Respondent's employment as a tenured classroom teacher with a professional services contract (PSC) within the meaning of Section 1012.33(1)(a), Florida Statutes (2007), for alleged misconduct in office.
Findings Of Fact The Respondent, Jerome McIntosh, is a 41-year-old divorced father of one. He obtained his entire education, prior to college, in the Okaloosa County School District. He played football and basketball at Niceville High School and subsequently attended and played football at Tulane University, obtaining degrees in sociology and physical education. Thereafter, the Respondent played professional football for a time and then subsequently worked in middle management positions with firms in the Seattle, Washington, area. He returned to Okaloosa County in 2003, to pursue a Florida Teaching Certificate, which he obtained, and embarked on a public school teaching and coaching career. The Respondent was hired as a teacher at Lewis Middle School (Lewis), by the principal, Dr. Linda Smith, for the 2003- 2004 school year. He continued to teach and coach at Lewis through the end of the 2007-2008 school year. During five years at Lewis he taught Eighth Grade Reading, Sixth Grade Honors World Cultures, and Sixth Grade Language Arts, as well as serving as the school's head basketball coach for five years, as assistant football coach for four years and as head football coach during the last year. Mr. Billy Mikel became principal at Lewis in January 2007. The Respondent attained a professional services contract status (tenure) and received a promotion to head football coach by Mr. Mikel. The Respondent's performance evaluations showed that he met expectations in every subject area, including the 2007-2008 school year evaluation, prepared by Mr. Mikel. He has been very successful as a basketball and football coach. His two teams have won four county championships. He has been asked to continue to be basketball and football coach each year and for the 2008-2009 school year, Mr. Mikel asked him to be head coach of both teams. He was working with both teams through early June 2008, up until the time of his suspension. The District has had an electronic resources use policy in effect for approximately the last five years. That policy does not prohibit the personal use of school computers by instructional personnel, and does not have objective internet use guidelines or prohibitions. Rather, it requires any use to "honor the ethical norms associated with the highest standards of professional conduct." See Petitioner's Exhibit 10 in evidence. The Respondent maintains he never saw that policy prior to the termination episode. He did learn that there was an Internet access filter in place by the District, because when he made some computer research inquiries that were teaching- related, he found that certain inquiries were blocked. The District maintains, District wide, a content filter (Websense) that prevents all District computers from visiting websites inappropriate for teacher and student access. The District also has a general personnel policy, 6-9, which requires the destruction of any anonymous written communication addressed to its employees when they receive such a communication. That policy was in effect, and applicable, according to the Respondent, to the AFF anonymous website flyer, when it was obtained by Mr. Mikel and his staff. It is also true that the anonymous website flyer was not addressed to any School Board employee; it was merely created and then distributed, apparently mostly on mailboxes, in neighborhoods of students and parents associated with Lewis. The Respondent had an intermittent romantic relationship with a fellow teacher by the name of Joni Shaw. This was when both were sixth grade language art teachers, with the same work schedules, during the 2007-2008 school year. The two had dated each other intermittently since approximately the end of 2006, and through the greater part of the 2007-2008 school year. Ms. Shaw tended to be emotional and extremely jealous and the relationship was intermittent for these reasons. She was jealous of the Respondent's time, and virtually any woman who communicated with the Respondent outside her presence. She became particularly upset by his pre-existing friendship with a mutual teaching colleague, Cindy Janazzo. This issue extended over the entire course of their dating relationship. Both the Respondent and Ms. Shaw had access to each other and to each other's classrooms during the work day. Ms. Shaw had access to the Respondent's school computer in his room and knew his computer password or log-on information. Ms. Shaw used the Respondent's computer occasionally, with his permission and/or in his presence. Sometime in August 2007, the Respondent discovered that Ms. Shaw had begun an email message, addressed to a teaching colleague at Lewis whom he knew, and another District employee he did not know. Ms. Shaw left the draft email message on the Respondent's computer. The Respondent did not notice the name of the employee he did not know (Arant Sutsko) on the address line of the draft message. He was, however, upset that Ms. Shaw had used his school computer without his knowledge when he saw the draft email message that already included the text; "if I were smart, I would have left it at that," referring to another document she sent him about why they should "break up." Mr. McIntosh then added several sentences to that draft message in which he chastised Ms. Shaw for using his computer without his knowledge and made a brief comment about the need for trust for a relationship to survive. After adding a short paragraph so criticizing Ms. Shaw for using his computer in this way, he simply added Ms. Shaw's name on the cc line and sent the resulting document. This created the erroneous impression that he had authored the entire document and consciously decided to send it to Sutsko. All the remaining emails in that sequence on the school system computer, which were found objectionable by the District, were sent by Ms. Shaw. Each of these emails was sent out by her very late at night or early in the morning and each included inappropriate, personal, and sexually-charged references. She made inflammatory remarks about the Respondent in the emails and threatened to harm his reputation and career. Upon receiving a complaint from Ms. Sutsko, Superintendent Tibbets asked Assistant Superintendent Rodney Nobles to look into the matter. Ms. Sutsko raised the concern some five months after the dates of the emails she received. Mr. Nobles spoke separately to Ms. Shaw and to Mr. McIntosh about the subject of the emails sometime in January 2008. Mr. Nobles informed the Respondent that he needed to refrain from sending out emails like that one from his school computer. He did not indicate to the Respondent that this was a formal disciplinary action or a particularly serious matter and the admonition was only verbal. The concern expressed by Mr. Nobles was only to the effect that the Respondent had sent an email of a personal nature on the school computer to someone he did not know. He only showed the Respondent the one email that was sent in error to Sustko, in cautioning the Respondent to be careful about how he used the District's email system in the future. The Respondent never again sent such an email. Ms. Shaw often spent time at the Respondent's house. She often stayed-over one or two nights per week at the Respondent's home. She sometimes stayed there by herself while he was running an errand or at athletic practice or some other event which kept him away from home for a time. At other times she would arrive before he did, as both traveled to his home from separate locations. She sometime used his home computer while he was at home doing other things. Mr. McIntosh and Ms. Shaw sometimes went shopping together and she was aware of his Visa cards, which he usually used as debit cards, although they could be used for credit purposes as well. He generally carried one of the debit cards in his wallet, leaving the other one at his home. The Visa cards were used to debit bills and purchases to the Respondent's checking account and Ms. Shaw had access to the card numbers and expiration dates due to her relationship with the Respondent, and her frequent presence in his home, sometimes when he was absent. She also knew his personal information such as age, birth date, height, weight, etc. Sabrina Hupp, at times pertinent hereto, was an 18- year-old student who knew Ms. Shaw because she dated Ms. Shaw's son, Tyler, during 2007-2008. Ms. Hupp was acquainted with the Respondent through her interactions with the Respondent and Ms. Shaw in the context of Ms. Hupp's dating relationship with Tyler and the Respondent's dating relationship with Joni Shaw during that year. On one day in April 2008, Sabrina was at the Shaw's home with Tyler when she observed Ms. Shaw viewing an AFF website entry that included a semi-nude picture of a man. Ms. Shaw stated that it was a picture of the Respondent. In her testimony, in evidence by deposition, as Respondent's Exhibit 26, she noted that Ms. Shaw had the user name/password to enter the website (the user name was "eatmyass2008"). She watched as Ms. Shaw responded to women who had sent messages expressing an interest in meeting the Respondent, based upon the AFF profile of him on the site. The only messages Sabrina Hupp observed on the website were incoming messages from women. She observed no messages emanating from the Respondent. Ms. Hupp was aware of the intermittent nature of the dating relationship between the Respondent and Ms. Shaw. Ms. Shaw was apparently a friend of the Hupp family. On May 27, 2008, Sabrina's brother passed away, and Ms. Shaw attended the visitation and the funeral after Sabrina's brother's death. The visitation for Sabrina's brother was held on the evening of May 30, 2008. The Respondent had planned to meet Ms. Shaw at his home after she returned from the visitation. In the meantime, the Respondent was at the district football jamboree while Ms. Shaw was at the visitation. The Respondent was delayed leaving the jamboree and Ms. Shaw arrived at his house well before he did. A neighbor, David Mains, observed Ms. Shaw's arrival and observed that while she was waiting for the Respondent to arrive Ms. Shaw became extremely agitated and repeatedly paced between the house and her car, angrily slamming her car doors and the Respondent's gate and garage door as she did so. Mr. McIntosh returned home later that evening and they spent the night together at his home. At one point during that evening, during a phone conversation, Ms. Shaw informed the Respondent that she had already left his home (apparently impatient due to his non- arrival there). She told him she was already some 15 miles away on the Mid-Bay Bridge. At that time the Respondent was only two to three miles from his house. The essence of their phone conversation was to the effect that Ms. Shaw would return to his home, and meet him there. However, when he traveled the two or three miles distance to his home, from the point where he had the phone conversation, upon his arrival he found Ms. Shaw already there and emerging from his shower. It is thus inferred that Ms. Shaw misled the Respondent about leaving his home before the Respondent arrived, and, implicitly, concerning how much time she had spent alone at his home that evening. After spending the night together at the Respondent's home Ms. Shaw was departing to attend the funeral on the morning of May 31, 2008, when she discovered that her car would not start. The Respondent and the neighbor, David Mains, helped to start her car, so she could get to the funeral. Mr. Mains is the neighbor who saw the activity of Ms. Shaw at the Respondent's home the evening before. When Mr. Main saw the Respondent working on Ms. Shaw's car in the driveway he inquired about the argument that he believed Ms. Shaw and the Respondent had the prior evening. The Respondent told him that there had been no argument and the Respondent had no knowledge of any angry outburst by Ms. Shaw. In any event, the Respondent and Ms. Shaw spent that weekend together and attended a cookout the next day, Sunday, June 1, 2008, at the home of friends. Cindy Janazzo is a teaching colleague of both the Respondent and Ms. Shaw. She sent a text message to the Respondent during the cookout which aroused suspicion in Ms. Shaw. Ms. Shaw apparently felt that the text message was indicative of some private relationship between Ms. Janazzo and the Respondent, or was "code" for some understanding between them and she confronted the Respondent in an angry way about it at the cookout. In the text message Ms. Janazzo had told the Respondent "not to eat too much" even though, supposedly, she was unaware that the Respondent was at a cookout at the time. In any event, Ms. Shaw confronted the Respondent about the message in a loud hostile manner in front of the Respondent and his daughter. The Respondent became very upset at Ms. Shaw's hostile behavior in front of his daughter and friends and so he abruptly left the party, further infuriating Ms. Shaw. A day or two after the Sunday afternoon argument between the Respondent and Ms. Shaw, either on Monday, June 2 or Tuesday, June 3, someone other than the Respondent distributed a flyer in neighborhoods near Lewis Middle School, that alerted residents to the existence of an AFF website profile entry that purportedly presented a danger to the school students. The flyer encouraged those who received it to open that website and find the entry with the password and the user ID information provided in the flyer. The flyer included a fully clothed picture of the Respondent standing on a football field. The semi-nude photograph of the Respondent that had been stored in his home computer could be viewed on the AFF website entry referenced in the flyer as well. A resident who came into possession of one of the flyers purportedly notified school officials of it on the morning of Wednesday, June 4, 2008. Upon being alerted to the existence of the flyers, the school officials gathered as many of the flyers as they could to try to prevent their circulation in the community. The principal, Mr. Mikel, immediately used the secure information (password and user name identification), depicted on the flyer concerning the AFF website, to see what was on the site that involved the Respondent. He thereafter called the Respondent to his office to ask him if the semi-nude photograph that appeared on the site was his photograph. The photograph depicted a man from the neck down to the legs (no facial view) seated, unclothed, but holding his hands over his genital area. Both Mr. Mikel and later Mr. Foxworthy gave the Respondent several opportunities to tell them that the picture was not a picture of him, because it seemed to them that the picture depicted a white man. The Respondent, however, in all candor, told them a number of times that it actually was his picture. The Respondent, however, consistently denied that he was responsible for the website entry. The District officials who viewed the website did not ask for or obtain permission from the Respondent or anyone else to use the password and user ID to gain access to the private, secure website entry which was attributed to the Respondent. They did not get his permission to access private, secure billing information associated with the creation of that website (credit card or debit card information). When Mr. Mikel asked the Respondent about his credit cards in the meeting on June 4, he did so because he had already accessed the billing information associated with the website entry's creation and thus learned about the credit card and card number which had been used to pay the bill for the site. In response to that question, the Respondent told Mr. Mikel that he only had a debit card, because he used his Visa card for debit purposes primarily. The Respondent then showed the Visa card he normally carried in his wallet telling Mr. Mikel that it was a debit card. The Respondent maintains that he did not think at the time about the other card that he normally kept at his home, also using it primarily as a debit card. The Respondent was then asked by Mr. Mikel to stay home for the rest of that week, which was during part of the post-planning period. The Respondent was busy that week grading exams and entering grades on the computer. He returned for the rest of the post-planning session the following week (June 9-11, 2008). He states therefore, in essence, that he did not give further consideration to the earlier question by Mr. Mikel concerning his credit card. He maintains that he did not intentionally deceive Mr. Mikel about the debit and credit card questions and answers, but rather had simply not thought about the other card, which he normally kept at home, nor the fact that both cards could either be used as credit or debit cards. The school administrators in question informed the Respondent, the morning of June 4, 2008, of the Aff website entry. He professes not to have known of it before that time and stated that he never saw the website entry until he asked for and was provided a copy of the flyer by Mr. Mikel a day or so later, so he could close down/delete the AFF profile in question. Ms. Shaw, however, as shown by Sabrina Hupp's testimony, knew of the AFF website more than a month before the flyer was distributed in the community. As Ms. Hupp testified, sometime in April 2008, Ms. Shaw entered the website in question, was perusing it and even responded to some of the comments of women who had responded to the website. Ms. Shaw had ready access to the Respondent's home computer during times pertinent to this case in the Spring of 2008, where the semi-nude photo of the Respondent was stored. Ms. Shaw knew of the existence of the website entry long before the flyers were distributed and she knew of and had access to the Respondent's Visa debit/credit cards, as shown by the above- found facts, concerning her frequent sojourns at the Respondent's home and their shopping together. She had detailed personal information about the Respondent and possessed all information necessary to have created the website and the flyers. Moreover, Ms. Shaw had threatened to cause harm to the Respondent's professional standing previously, in an email. The flyers were publicly distributed, and the related website made public, only one or two days after the hostile argument situation arose at the cookout on Sunday afternoon, June 1, 2008. Ms. Shaw and the Respondent had a stormy, intermittent dating relationship through 2007 and the first half of 2008. She had a history of becoming quite jealous and upset regarding contacts of any nature by other women with the Respondent. She seems to be a person possessed of a hot temper and dramatic personality. On balance, the preponderant, persuasive evidence underlying the above Findings of Fact does not, in light of all the above-found circumstances, establish that the Respondent created the AFF website entry. The proven circumstances of the above Findings of Fact show that there is a substantial likelihood that Ms. Shaw created the AFF website entry and distributed the flyers in question. The above Findings of Fact show significant motive and opportunity in that regard on her part. The Respondent had a duty-free lunch period between 10:45 and 11:10 on each day at Lewis. He sometimes ate lunch alone in his classroom and on some of those occasions explored internet Sports Illustrated and Fox Sports websites seeking sports-related and general information of interest to him on the school computer. On some occasions he "clicked" on items or stories of interest that took him indirectly to other websites, including the website "Bugehoobs" on one occasion. In the course of intermittent internet browsing the Respondent viewed many images of women in swim suits or otherwise scantly clad over a period of several months. There were 1000 or more other images, not of that nature, that appeared on web pages he accessed over the several month period. The District had an Internet filtering system to block particular sites or images considered to be inappropriate to be viewed on school computer systems. The Respondent was not proven to have ever attempted to by-pass the District's Internet filtering system. The images he did view on the computer system were not blocked by the filtering system, there was no restriction of access to the sites and images he viewed. The Respondent never viewed any nude or pornographic images on any occasion on the school's computer. This is undisputed. Temporary Internet File (TIF) images are created automatically as to any image appearing on an access page, regardless of the reason the page was accessed. They are not permanent files created or monitored by a computer user and can be deleted by anyone who knows how to do so. The School District's computer technician, Mr. Mitchell, was unable to obtain the "websense report," which could be generated by the District's computer system, because of time, space, and server constraints. It would be the best source of information about the Respondent's school computer, including the sites he had accessed with that computer. Because of this Mr. Mitchell drew erroneous conclusions, based upon assumptions from his TIF review, to the effect that the Respondent had tried to bypass the District's web access filter. Mr. Mitchell informed Mr. Foxworthy and Mr. Mikel that many TIF images he found on the school computer in the Respondent's custody were pornographic in nature. Foxworthy thereupon informed the Respondent that he could either resign or be terminated for viewing pornographic images, before Foxworthy had even seen the images, later described by himself as "old- fashioned cheesecake." Mr. Foxworthy first met with the Respondent on Thursday, June 12, 2008, after the end of the school year. This was before Mr. McIntosh had been informed about anything concerning alleged inappropriate website access concerns with regard to the school computer. Mr. Foxworthy told the Respondent he could resign or be terminated, but not because of the private AFF website issue, but rather for accessing pornography on his school computer. Mr. McIntosh knew that was not true and asked to see the alleged pornographic images. A meeting for that purpose was scheduled and took place on Monday, June 16, 2008. With disciplinary action in the offing, the Respondent sought the assistance of a union representative regarding the proposed termination, after that June 12, 2008, meeting with Mr. Foxworthy. He attended the subsequent scheduled meeting on June 16, 2008, accompanied by union Executive Director Greg Butler. Also in attendance at the meeting were Mr. Mitchell, the District's computer technician and Mr. Mikel. Mr. Mitchell showed the Respondent and Mr. Butler a substantial number of randomly selected, purportedly objectionable swim suit images at that meeting, which were among a larger number of non- objectionable images. Mr. Butler and Mr. Mitchell confirmed that the remaining objectionable images were of a similar nature to those Butler had already viewed and all were considered non- pornographic. After leaving the meeting Mr. Butler called Mr. Foxworthy to find out if he had seen the objectionable images and learned that he had not. During their phone conversation Mr. Foxworthy acknowledged that he should view the images before terminating the Respondent. In fact, around the time of these events a swim suit competition was being conducted by the Northwest Florida News Herald, a newspaper of general circulation in Okaloosa County. The swimsuit competition included images of many women in swimsuits which were similar in nature to the allegedly objectionable images Mr. Butler was shown by Mr. Mitchell at the meeting of June 16, 2008. None of the websites the Respondent occasionally accessed, such as the Sports Illustrated or Fox Sports websites nor even the Bugehoobs website he accessed one time, indirectly, (by clicking on a news item concerning Tiger Woods) was blocked by the District's internet filtering system at the time the Respondent accessed them. None of the images he accessed could be deemed to be any image of pornography. Ms. Alexis Tibbetts, the Superintendent, formerly was the principal at Ft. Walton Beach High School. While she was the principal there she supervised a high school teacher by the name of Michelle McVay. During the approximate time the events happened leading up to the proposed termination of the Respondent, in the Spring of 2008, Ms. McVay voluntarily entered herself in the area daily newspaper's on-line swimsuit competition, by submitting a suggestive swimsuit photo or image of herself to the newspaper, through its website. Ms. Tibbets and the District took no disciplinary action against Ms. McVay, although it was suggested that she remove the photograph from the newspaper's website. The images entered in the swimsuit contest, including Ms. McVay's, were similar in nature to those the Respondent is charged with viewing on the school computer during his duty-free lunch hour (his own time). Ms. Tibbets has also known Ms. Shaw personally for some 15 years. As superintendent she once helped Ms. Shaw out of a serious legal problem involving potential prosecution for writing bad checks to the District. In contrast, Ms. Tibbets had never met the Respondent before the events in question. The events that triggered the investigation, the distribution of the flyers, happened within two days of the end of the school year. It generated very limited public awareness, as most of the flyers were retrieved. Newspaper coverage of these matters was limited to a period of only a few days after the Board's action in July 2008, and TV coverage was minimal or non-existent. Seven months elapsed between the events in question and the hearing. The Respondent has performed both his teaching and coaching duties well, over the five years he has been employed by the District. He was and remains well-liked and respected in his school community and there are no written records of any parent or student complaints or student removal requests received by the District concerning the Respondent in the aftermath of these events. The Respondent has demonstrated by preponderant, persuasive evidence that he can still be an effective teacher and coach employed by the Petitioner. The Respondent has not been accused of any criminal violation in conjunction with the matters in question. There has been no arrest on criminal charges and no activity he is accused of committing, with regard to the issues in this case, involves students in any way. The Respondent did not engage in misconduct in office in the context of his use of the internet on his personal school computer or school laptop. He did not violate school or District policies in the context of the allegation that he created a profile on a private, secure, adult website, as no student was involved, no school computer or resources were used and it was purely a private matter that happened to be made known by someone other than Mr. McIntosh. None of the Respondent's actions alleged to have been improper, individually or collectively rise to the level of misconduct in office or immorality, if such a charge were allowed to survive the Respondent's objection on due process grounds.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered dismissing the subject charges and reinstating the Respondent with back pay and related benefits, retirement credits, supplemental coaching pay, as described above, and that he be reimbursed for all categories of lost benefits that come within the proper scope of a "make whole" remedy. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Alexis Tibbetts Superintendent Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548 Michael E. Foxworthy Chief Officer, Human Relations Okaloosa County School Board Administrative Complex 120 Lowery Place Southeast Ft. Walton Beach, Florida 32548
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue The issue in the case is whether Petitioner’s employment position was properly reclassified from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001). All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Petitioner was employed with the Department beginning in 1998 as a Grant Specialist. In April 2000, she applied for and was promoted into a newly created position of Operations Management Consultant (OMC) Manager in the Serving Health Insurance Needs of Elders (SHINE) program. The SHINE program is primarily a statewide health insurance counseling program designed to serve Florida’s elders. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service effective July 1, 2001. Petitioner’s position description describes the duties and responsibilities of the position as follows: The Operations and Management Consultant Manager assists with supervision and coordination of day-to-day volunteer management and program management functions for the SHINE (Serving Health Insurance Needs of Elders) Program. Works [sic] is performed under the supervision of the program coordinator (Senior Management Analyst Supervisor) and in support of the department’s mission, vision and values. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities: 30% Manages volunteer support activities for the SHINE Program. Provides orientation, training and ongoing technical assistance to program partners and volunteer leadership; develops resource guides and other tools to assist with programmatic and operational issues; conducts meetings, workshops and seminars to build leadership skills; maintains regular communication with program liaisons and volunteer leadership; disseminates correspondence on key programmatic issues; helps resolve operational challenges; and works to ensure outcomes measures are achieved. 20% Supervises volunteer service functions for the program. Develops protocols and tracking systems for service and support provided to volunteers and staff. Coordinates collection of information for the volunteer database and maintenance of volunteer files. Assists with surveys and evaluations. Supervises activities of program staff. 10% Assists with development, preparation, monitoring and oversight of contracts of agreement with providers and program partners. 10% Performs other duties as assigned by SHINE Program Coordinator. 10% Ensures the aspects of SHINE Program of Information& Referral (I & R), education and outreach are coordinated with the overall agency responsibility in those areas. Supervises staff activities as they relate to these functions. 5% Takes the lead for the preparation for the SHINE grant reapplication and other related new grant applications and opportunities. 5% Assists with budget development. 5% Ensures that required grant reports and narratives are submitted to funder on time and complete. 5% Represents Department of Elder Affairs and SHINE at community education events for the public and the aging network. May make presentations at workshops, community forums and seminars as assigned. Serves as an advocate for elders. Further, the position description lists six positions which are described as “subordinate positions.” This is consistent with the organizational chart of the Division of Self Care and Community Volunteer Initiatives which also reflects six positions directly under her position. However, during the time Petitioner held the position of OMC Manager, there were some reorganizations that resulted in two of the positions being shifted, sometimes being under the authority of Petitioner and sometimes being under the authority of others. In any event, at all times material hereto Petitioner was the supervisor of five to seven persons. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she had supervisory duties, but asserts that she only spent a minimal amount of time in the performance of supervisory activities. Each morning, Petitioner would hold a staff briefing which lasted 15 to 30 minutes with the individuals she supervised. Petitioner described these group staff meetings as an update session to discuss “what’s hot, what are you working on, do you need help, do you need information . . . and more targeted towards continuing to instill a teamwork type of effort in the attitude of the staff.” In addition to her duties regarding staff, Petitioner was also responsible for the oversight of contracts with program providers and with volunteers. These providers and volunteers were not employees of the Department. Petitioner estimates that she spent between 50 and 75 percent of each day on contract management issues. However, in terms of her responsibility to develop, prepare, monitor, and oversee those contracts, she would utilize her staff in order to carry out many of those duties. Tom Reimers has worked for the Department since 1995. He is currently the Director of the Division of Volunteer and Community Services. Prior to that, he served as Director of the SHINE Program. During part of that time, Mr. Reimers was Petitioner’s direct supervisor. According to Mr. Reimers, Petitioner was responsible for the work product of the employees she supervised, in reviewing their work product, in informing those employees when their work product was inadequate, and in evaluating employees including signing their “Review and Performance Planning” forms. Her signature on those employee reviews appears in the line designated for “supervisor’s signature.” Mr. Reimers considered Petitioner to be a full-time supervisor in that Petitioner had the authority to sign time sheets, approve and consider requests for travel, provide information to her employees about their job and about the Department’s mission, ensure that they were carrying out the mission, and provide guidance to her subordinate employees. When Mr. Reimers received communications from the persons under Petitioner’s supervision or needed to communicate something to them, he would generally funnel that communication through Petitioner. Moreover, Mr. Reimers was frequently out of the office due to his job responsibilities. When he was out of the office, Petitioner described herself as a “second-in-command type of individual monitoring the program at home.” Mr. Reimers conducted Petitioner’s employee evaluations. His review of her work included her ability to communicate with employees, whether she was properly assigning and overseeing work of her subordinates, and whether she was motivating her staff. Petitioner received positive evaluations from Mr. Reimers. Petitioner interviewed applicants for at least two employment positions and made recommendations regarding their employment. In both instances, those persons recommended by Petitioner were hired. Petitioner was employed by the Department until March 31, 2002, when her position was eliminated because of loss of grant monies which funded her position. The weight of the evidence supports a conclusion that Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Elder Affairs should enter a final order finding that the position held by Petitioner Candace C. McMahon on July 1, 2001, was properly classified into the selected exempt service. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of September, 2004.
The Issue The issue is whether Petitioner is entitled to an equivalency-of-training exemption from law enforcement officer basic recruit training.
Findings Of Fact Petitioner is presently employed as a transit security officer on the Miami Metro-Rail. Respondent certified Petitioner as a law enforcement officer on August 23, 1981. However, his last day of certified employment, which was with the Dania Police Department, was July 27, 1987. Petitioner has taken no law enforcement classes since 1987. As part of the process by which he could obtain re- certification as a law enforcement officer, Petitioner tried to enroll in a 92-hour class in May 2003 at the Institute of Public Safety at Broward Community College. The 92-hour classes offered at Broward Community College fill up almost immediately after they are announced. Petitioner eventually was able to enroll for a 92-hour class at Broward Community College that started November 9, 2003. Enrollment in the 92-hour class requires Petitioner to complete basic-recruit training or obtain an exemption from such a requirement due to the completion of comparable training in another jurisdiction. Petitioner thus submitted an equivalency- of-training form (Form CJSTC 76), by which he sought an exemption from the requirement of basic-recruit training. By letter dated October 28, 2003, Respondent advised Petitioner that he was not eligible for the equivalency-of- training exemption because of a break of more than eight years in relevant employment. The letter advises that recent legislation, which had been signed into law on July 11, 2003, prohibited the recognition of an exemption after an eight-year break in employment. Petitioner has failed to establish any basis for estoppel. No one ever provided him with any misinformation whatsoever, nor, of course, did Petitioner rely on any such misinformation. Nothing precluded Petitioner from taking the 92-hour course at a location other than Broward Community College; evidently, for personal convenience, Petitioner tried to enroll for the course offered only at Broward Community College. Nothing in the record indicates if the 92-hour courses offered at other locations were as difficult to obtain. And, of course, nothing prevented Petitioner from trying to enroll in the 92-hour course more than a couple of months before the new legislation became effective.
Recommendation It is RECOMMENDED that the Department of Law Enforcement enter a final order rejecting Petitioner's request for an equivalency- of-training exemption from basic-recruit training due to the break in relevant employment of more than eight years. DONE AND ENTERED this 10th day of February, 2004, in Tallahassee, Leon County, Florida. S _____ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Bo 1489 Tallahassee, Florida 32302 Debi George-Alten Post Office Box 771105 Coral Springs, Florida 33071 Brian Hirsch 5156 Northeast 6th Avenue #216 Fort Lauderdale, Florida 33334 Grace A. Jaye Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue The issues in this case are whether Respondent, Neil A. Merica, committed the offenses alleged to have begun in 1994 through 1999 as stated in the Amended Administrative Complaint dated May 7, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of the witnesses while testifying; the documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); stipulations and arguments of the parties; and the entire record compiled herein, the following relevant, material, and ultimate facts, arrived at impartially, based solely upon the extensive evidence adduced at the final hearing, are determined: Respondent's Qualification and Teaching Experiences Mr. Merica holds a degree in speech communication from the University of South Florida. He is also certified in specific learning disabilities (SLD) by that institution. Early in his 13-year tenure as a teacher at Foster Elementary School (Foster), he acquired a degree in computer science from Florida Metropolitan University. Mr. Merica holds Florida Educator's Certificate No. 532934, covering areas of English Speakers of Other Languages (ESOL), SLD,2 and Speech. His Florida Educator's Certificate expired June 30, 2003. As of the date of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. Mr. Merica also holds a teaching certificate from New Hampshire. Mr. Merica has a very demonstrative and expressive personality. His voice, when speaking at his normal conversational tone, resounds from the back of his throat in a louder than average volume. During his testimony, the pitch of his voice and his rapid speech pattern was accompanied by an unexpected and sudden outburst of spastic energy. Hillsborough County School Board's "Pull-out" Classroom Policy In 1987, the Hillsborough County School Board (Board) operated a Pull-out Classroom Policy (Pull-out Policy) for SLD and Physically Impaired (PI) students. Pursuant to the Board's Pull-out Policy, SLD and PI students were pulled out of their regular classes, divided into various numbered groups, and sent to a designated "resource" class teacher during the school day. Respondent's Initial Teaching Assignment Under the Pull-out Policy in 1987-1988 Mr. Merica began teaching at Foster as a SLD resource class teacher in October 1987 when the Board's Pull-out Policy was in effect. A resource teacher is the teacher whose class consisted of SLD students who were "pulled out" of regular classes of non-SLD students and sent to a resource class consisting of all SLD students for teaching and instruction. In 1989, the Board changed its Pull-out Policy to a "Self- contained" Classroom Policy (Self-contained Policy). The Self- contained Policy was designed to keep all SLD students together in one identified class throughout the school year. Mr. Merica taught SLD students under the Self-contained Policy at Foster until the 1992-1993 school year. Beginning at the start of the 1992-1993 school year, Foster's administration assigned Mr. Merica to teach a resource class consisting of PI and Learning Disabled Resource (LDR) students. PI classes consisted of students with a variety of physical impairments, including students who required various assistance devices such as wheelchairs, walkers, braces and "talkers," a machine device that assists the student with speaking difficulties to communicate. Mr. Merica continued as a PI and LDR teacher from the 1992-1993 school year through the 1998-1999 school year. Foster Elementary Exceptional Student Education Student Population from 1998 to 2000 During the two-year period of the 1998-1999 and 1999- 2000 school years, Foster had a large exceptional student education (ESE) population among its general student population. Foster's ESE community population consisted of 22 units, composed of full-time ESE students. There were six units of mentally handicapped students, with mental handicaps ranging from severe and profound mentally handicapped to mild emotionally mentally handicapped. There were four units of autistic students and four units of PI students. Foster had approximately five units of early exceptional learning programs, and three units of SLD students. Policy Change to Self-Contained Classes in 1998-1999 During the fall of the 1998-1999 school year, the Board changed their Pull-out Policy for SLD and PI students to a Self- contained Policy. The Self-contained Policy was instituted because of the severity of the students' learning disabilities, their struggles with academics, and the administration's conviction that the daily routine of shifting the SLD and PI students from "regular class to resource class" did not sufficiently address the students' individual learning disabilities and individual educational needs. Foster's administration identified students whom they believed did not handle transition well and recommended them as candidates for self-contained classes. The primary objective of the administration was to provide more "direct teaching time" and "direct teaching services" to each SLD or PI student. In the self-contained classes, SLD and PI students were assigned to one class and one teacher with a teacher's aide and/or a Department of Education for Exceptional Students (DEES) attendant throughout the day. The teacher's aides were those persons who were permitted to assist, under the oversight of the teacher, the classroom teacher with all facets of teaching, instruction, and classroom control. The DEES attendants were those persons whose duties consisted primarily of assisting the teacher by attending to individual and personal needs of SLD and PI students, i.e. changing their clothing, providing restroom assistance, etc. Respondent's 1999-2000 Reassignment to Teach Self-contained SLD Class In mid 1998, Brenda Griffin (Principal Griffin) was appointed principal of Foster replacing Janice Payne, f/k/a Pils (Principal Payne). At the start of the 1999-2000 school year, Principal Griffin changed Mr. Merica from his PI and LDR class and assigned him to teach a self-contained class of SLD students. A self-contained SLD class is a class composed of SLD students, each of whom has an individual educational plan (IEP) designed as the teacher's guide to assist in teaching each student to achieve specific, individual, and predetermined educational goals. Each IEP is developed by joint agreement of the SLD student's parent, his/her teacher and the assigned therapist (teacher). The IEP also identifies special educational services and supports that may be necessary to achieve desired outcomes and short-term objectives, and it establishes student educational benchmarks. An IEP may or may not contain daily, weekly or monthly checklists to evaluate a student's progress in achieving the benchmarks contained in his or her IEP. To make an objective determination of whether a student with an IEP has made progress (advanced from or to an ascertainable educational position), knowledge of the educational benchmarks contained in the student's IEP are essential. During the earlier years as a teacher at Foster, Mr. Merica served as the school's Classroom Teacher's Association (CTA) representative. In this capacity, he would address and argue those issues he believed to have had direct impact upon teachers who were members of the CTA. Mr. Merica attributed many of the comments made during staff meetings to addressing issues he believed had an impact upon teacher members of the CTA. During the 1997-1998 school year and after lengthy discussions with Principal Payne, but before Principal Griffin was appointed principal, Mr. Merica resigned as CTA representative. In September of 2000 and after 13 years of annual employment contract renewals, the Board terminated Mr. Merica's employment. At the time of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. In this proceeding, the Commissioner seeks to permanently revoke Mr. Merica's right to renew his Florida Educator's Certificate. The Amended Administrative Complaint The Amended Administrative Complaint alleged specific instances of specific conduct, specific acts, and specific speech to have occurred at unspecified dates and at unspecified times during a five-year span of time from 1994 through 1999. Accordingly, only incidents specifically alleged and proven by evidence of record to have occurred on or after January 1, 1994, through December 31, 1999, are considered in determining whether the Commissioner proved each allegation charged in the Amended Administrative Complaint. STATUTE VIOLATIONS Count 1: The Respondent is in violation of Section 1012.795(1)(b), Florida Statutes, in that Respondent has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school. Count 2: The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving mortal turpitude. Count 3: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 4: The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession Prescribed by State Board of Education rules. RULE VIOLATIONS Count 5: The allegations of misconduct set forth herein are in violation of Rules 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 6: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(5)(d), Florida Administrative Code, in that Respondent has engaged in harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment; and further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination. WHEREFORE, Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 1012.795(1) and 1012.796(7), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms. Amendment to Amended Administrative Complaint to Correct Scrivener's Error. On December 24, 2003, Petitioner filed a Motion for Leave to Amend Complaint to Correct Scrivener's Error, which was granted and provided the following: On November 6, 2003, Petitioner Amended the Administrative Complaint in this matter. Paragraph 5 of the Amended Administrative Complaint should be further amended to correct the scrivener's error. Paragraph 5 of the Amended Administrative Complaint currently states: "During the 1998-99 school year, Respondent sexually harassed several different co- workers." That portion of Paragraph 5 should be amended to state: "Between 1994 and 1999, Respondent sexually harassed several different co-workers," to conform the time period for the allegations of Paragraph 5 with the time period for the allegations of all other paragraphs of the Amended Administrative Complaint. Janice Payne, Principal at Foster from 1987-1998 Principal Payne was principal at Foster from May 1987 to May 1998. An illness forced her to retire midyear in the 1997-1998 school year. After Principal Payne’s retirement, the Board appointed Principal Griffin as principal of Foster. Principal Griffin held that position during the time of this hearing. During Principal Payne's 1987 to 1998 tenure as principal at Foster and as required by statute, she performed yearly evaluations of Mr. Merica's professional performance as a teacher of SLD and PI students. Consideration was given to annual performance evaluations for the 1994-1995 and 1998-1999 school years. During the 1994-1995 through 1997-1998 school years, Principal Payne identified, in her annual evaluations of Mr. Merica's overall professional teaching performance, specific areas in which she independently determined Mr. Merica was in need of professional growth and improvement. At the end of each of those four evaluation periods, she met with Mr. Merica and discussed and identified for him those specific areas in which he was in need of professional growth and improvement. She provided him with specific, constructive advice and assistance to facilitate his professional growth and improvement as a professional teacher in the areas she identified. Undisputed evidence established that Mr. Merica accepted Principal Payne's constructive advice and assistance; he complied and implemented her suggestions in each area identified as in need of growth and improvement, and he grew and improved his performance in each identified area. It is noted, however, that Mr. Merica would sometimes suffer relapses and revert into his old pattern of voicing his personal opinions on a variety of subjects, described by Principal Payne as just: "talking up and rumoring everybody." Even with his propensity to occasionally "talk up and rumor everybody," Principal Payne concluded that he was a very good teacher and that he could be better. Principal Payne's methodology of assisting her young professional teachers' growth was to identify areas in need of improvement followed by personal conferences with each teacher explaining areas in need of improvement, making individualized suggestions tailored to the need(s) of the teacher, and, after an appropriate time interval, completing a follow-up assessment to evaluate the teacher's growth, improvement, and compliance with her suggestions. The record evidence demonstrated the existence of a professional and respectful relationship between Principal Payne and Mr. Merica, spanning the eight or more years they worked together, including the few occasions when there were disagreements. 1998-1999 Performance Evaluation of Mr. Merica In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE co-worker. Nevertheless, when Principal Payne evaluated his overall professional teaching performance for the 1998-1999 school year, including his personal conduct, she gave him a "satisfactory" rating in every area, without comments. Principal Payne made her independent written evaluation of Mr. Merica without assistance of any criteria or standards, other than as indicated on the evaluation form.3 In reaching her independent assessment of Mr. Merica's proficiency and effectiveness, scoring them on the characteristics and numerical scale indicated, she relied upon his teachings, his problems, and his improvements experienced. Her professional judgment of Mr. Merica was based upon her personal observation and day-to-day association with her teachers. Mr. Merica's 1998-1999 Performance Evaluation is the most accurate, reliable, and undisputed evidence of his competence and overall professional performance as a teacher during the 1998-1999 school year. There is no credible evidence of record that Mr. Merica engaged in unprofessional conduct evidencing either a past, an onset or a continuation of professional incompetence as a teacher in the school system during the 1998-1999 period covered by Principal Payne's annual evaluation. In response to the general inquiry of “whether or not her previous discussions and her prior improvement expectations of Mr. Merica as a teacher over the [unidentified] years were successful,” Principal Payne, convincingly, testified: Yes, temporarily, absolutely. My philosophy about Mr. Merica--first of all, he could be a good teacher if he wanted to be because I have observed him. I know that. He could behave if he wanted to. He could be a strong staff member. But, you know, he could do that probably for maybe four months or five months and all of a sudden it was just--he was just doing the same old thing, just going around, talking to everyone, rumoring people or getting rumors to people. It's just like this school was his life. Continuing, Ms. Payne testified: Mr. Merica would frequently apologize and realize what he had done was wrong, because at one time he's like a lamb and help to do whatever he can do and other times he just be so angry and upset to the point of where I said his behavior would frighten me. As the professional supervisor who worked with Mr. Merica for more than a ten-year period, Principal Payne was the most experienced and most knowledgeable person from years of hands-on experiences to have observed "the beginning of professional teaching incompetence that was not responsive to assistance provided by other professionals and continued unabated throughout her tenure." The Commissioner failed to prove, through the testimony and documentation of Principal Payne, "a beginning of demonstrated professional incompetence in 1994" or even as late as the school year of 1996-1997, as alleged in the Amended Administrative Complaint. Based on the testimony of Principal Payne, it is a reasonable inference, and I infer, that the "behavior of anger" sometimes demonstrated by Mr. Merica in Principal Payne's presence was directed toward the subject matter of "what he had done was wrong" and not directed toward the person of Principal Payne. Through the above testimony, the Commissioner failed to prove that between 1994 and 1998-1999, Respondent was insubordinate and confrontational towards Principal Payne during her tenure as principal. The Commissioner failed to prove the allegation that Mr. Merica's personal conduct began to demonstrate "incompetence" as a professional teacher during the period of the 1994-1995 through mid-year of the 1997-1998 school years while Principal Payne was principal of Foster. A review of the record demonstrated, and the undersigned so finds, that no other witness called by the Commissioner provided credible, material and substantive evidence, based on personal knowledge contradicting the testimony of Principal Payne, that related to Mr. Merica's professional "teaching skills" during the period of the 1994-1995 through mid-year 1997-1998 school years. Brenda Griffin Principal at Foster Elementary beginning in 1998 After the 1997-1998 midyear resignation of Principal Payne, the Board appointed Principal Griffin as principal of Foster. The professional relationship between Principal Griffin and Mr. Merica became tense, and, based upon the collective testimonies of teachers and administrative staff members hereinafter, the tension was known by both the professional staff and administrative employees at Foster Elementary. Principal Griffin recalled that during her first year as principal at Foster (approximately the latter half of the 1997-1998 school year), she made an unannounced visit to Mr. Merica's self-contained classroom of PI students. Recalling her visit, she testified: [T] hey [students], all had IEPs that have specific goals for each student and what I observed was group instruction, but I felt like the PI students were not being stimulated. (Emphasis added) There is no record evidence of the particular teaching materials being used by Mr. Merica during this single visit. There is no record evidence establishing ascertainable professional expectations or teaching standards below which Mr. Merica was performing during Principal Griffin's initial visit. There is no record evidence of specific educational benchmarks or educational goals contained in the PI students' IEPs. Within the situational circumstances of this one visit as testified to, Principal Griffin's conclusiory opinion that Mr. Merica's "PI students were not being stimulated" lacks an objective benchmark for evaluation, as well as any reasonable degree of reliability to produce a firm belief as to the truth of the matter sought to be established. Continuing, Principal Griffin testified: Mr. Merica would go to the board, where there may or may not have been written some vocabulary words, and he would start some kind of instruction and I felt that was because I was in the room--sometimes the aides would get up to work with the kids and sometimes not, and I was sure they were waiting on the direction from their teacher at that time. (Emphasis added) Principal Griffin recalled another separate incident, but omitted providing the month or year, when she "observed Mr. Merica sitting at his computer--she "did not know what he was doing at his computer"--but she had been in his classroom on a previous (unidentified time) occasion when a golf game was on the computer and she--"knows that he was not tending to the students." Principal Griffin's conclusions, her feelings, and her opinions in findings 24 and 26 herein above, minus evidence of the situational circumstances surrounding each incident, lack reasonable reliability to produce a firm belief of the truth of the allegations sought to be established. Principal Griffin also recalled (unspecified) occasion(s) on which she observed Mr. Merica outside his classroom. She characterized those observations as having seen Mr. Merica: verywhere- in the hallways, in the lunchroom, at the PE field, in the back of the school--in the ESE wing building, where the buses are for the kids, in the clinic, in the office, everywhere-at any period of time during the day. There is no record evidence of personal knowledge by the witness or evidence of the situation and/or circumstances that caused Mr. Merica to be outside his classroom on those occasions when he was observed by this witness. The witness' summary characterization, "everywhere-at any period of time during the day," lacks certainty, reasonableness, and a degree of believable reliability to produce a firm belief as to the accuracy of the matters to which she testified. Viewed most favorably, Principal Griffin's testimony failed to establish that on each of those occasions she observed Mr. Merica outside his classroom; his presence outside his classroom was not within the scope of his professional responsibilities and duties as a professional staff member at Foster. The credibility of this witness is further diminished by her exaggerated testimony of facts at issue. This testimony and the intended inference that his absence from his classroom caused a direct and negative impairment on his students' learning, lack essential details to provide a reasonable degree of reliability and cast insurmountable doubt as to the truth of the allegations sought to be established. Principal Griffin testified she talked with Mr. Merica about not being in his classroom and he told her: [H]e needed a break or that it was his break time and that his aides were in the classroom and they were capable of instructing his students. Mr. Merica disputed and denied making the particular statement, i.e. "that his aides were capable of instructing his students." His version of the reason(s) for absences from his classroom were reasonable explanations(s) corroborated by other witnesses as found infra. Even if Mr. Merica's denial of the inferred accusation is unbelievable, it does not prove the accusation by the Commissioner to the contrary. The acceptable and unacceptable reasons or situations a teacher may or may not be out of his or her classroom, and personal knowledge of those unacceptable occasions that Mr. Merica was not in his classroom, were not established through the testimony of Principal Griffin. The evidence does not support the frequency or extent of her assertions but, instead, casts doubt on the accuracy of the witness' testimony. The Commissioner failed to prove through the testimony of this witness that on each occasion Mr. Merica was observed outside his classroom, his presence was unreasonable, unprofessional, and caused a direct and negative impairment on his students' learning. Principal Griffin testified, unconvincingly, regarding another incident (again with no record evidence of the month, school year or the situational circumstances) that "a mother" called her to bring to her attention "that the teacher was not using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The witness did not provide the mother's identity. The witness did not provide the child's identity. The witness did not provide the teacher's identity though those three persons were allegedly involved in this undocumented incident. The presumed inference(s) that Mr. Merica was "the teacher" referred to by the unidentified mother, who (inappropriately) disciplined "a child" by taking away the unidentified child's touch-talker, is unreasonable. The vague, non-specific testimony of this witness, and her inability and/or her refusal to identify the mother, the child, and the teacher, create an unacceptable level of credibility due to the absence of three significant points of identity. The credibility of this witness' testimony was further diminished by the lack of corroborating testimony by other witnesses, and the witness' credibility disappeared because no recording was made of such an important call from a parent to the principal of a school. The testimony by this witness does not establish or corroborate other testimony regarding the issue of "some teacher using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The Commissioner, through the testimony of this witness, failed to demonstrate that Mr. Merica "inappropriately disciplined a student," as alleged in the Amended Administrative Complaint. The testimony of this witness, based solely on debatable expressions as her personal "feelings" and personal "opinions" regarding alleged conduct in the past reflected in findings 24 through 32 herein above, viewed most favorably, lacked reasonable reliability and substantial weight to produce a firm belief as to the truth of the allegations sought to be established. Respondent's 1998-1999 Personnel Performance Evaluation At the end of the 1998-1999 school year and notwithstanding her testimony in findings numbered 24 through 32 above, Principal Griffin, independently, determined that Mr. Merica's overall professional teaching performance, to include his personal conduct and, by reasonable and objective implication, his teaching competence, was satisfactory in every category for the 1998-1999 school year. The overall "satisfactory" performance evaluation given Mr. Merica by Principal Griffin for his professional teaching competence and personal conduct in the 1998-1999 school year is significant when juxtaposed to her testimony at the final hearing. As late as May 1999, this witness' independent evaluation of Mr. Merica's professional teaching competence and his personal conduct was reflected on his 1998-1999 performance evaluation as "all satisfactory." However, the testimony contained in Findings of Fact 24 through 32 in this 2004 proceeding is a direct contradiction. This aspect of the witness' 2004 testimony and written 1999 evaluation raised substantial issues of the witness' intent and cast insurmountable doubt on the witness' credibility. The lack of consistency in opinion and the ambiguity created by the 2004 testimony of conduct having occurred from pre-termination to post-termination are resolved in favor of Mr. Merica. Mr. Merica's competence as a teacher, his teaching skills, classroom management, and student discipline, as evaluated and determined by Principal Griffin, for the 1998-1999 school year, ending May to June 1999, is the more substantial, reliable, and persuasive indicator of his past performance and competence as a professional teacher during the preceding 1998-1999 school year. Debora Bragdon, Secretary to Principals Payne and Griffin Debora Bragdon testified that during the 1999-2000 school year (ending May to June 2000), Mr. Merica came into the administrative office a minimum of once and "sometimes" twice a day, depending upon the day. According to Secretary Bragdon: Mr. Merica and Principal Griffin had discussions in the principal's office a minimum of once and sometimes twice a day throughout the entire school year. Secretary Bragdon could not recall the subject matter discussed nor did she recall hearing Principal Griffin's voice at any time during the alleged daily office discussions. Mr. Merica's voice, however, she heard stating that "Mr. Merica would be screaming so loud that I could hear him clearly." However, she could not recall a word or phrase spoken by Mr. Merica. Secretary Bragdon did not enter the principal's office when Mr. Merica and Principal Griffin were having their daily conferences. Secretary Bragdon surmised, from the tone of Mr. Merica's voice only, that Principal Griffin was in danger. Secretary Bragdon further testified that during those daily conferences she would buzz Principal Griffin on the intercom asking if she needed assistance, and Principal Griffin repeatedly assured her that "she did not need assistance." Principal Griffin did not corroborate or confirm Secretary Bragdon’s testimony on the issue "once and sometimes twice a day throughout the entire school year she had discussions with Mr. Merica in her office." Any reasonable consideration of Secretary Bragdon's above recollection requires acceptance of the fact that a minimum of 180 (once a day) to a maximum of 360 (sometimes twice a day) conferences occurred in Principal Griffin's office during the 1999-2000 school year between Principal Griffin and Mr. Merica. The intended inference that during each daily office conference, whether 180 times or more, Mr. Merica was always screaming at Principal Griffin while she sat silently in her office is rejected. Secretary Bragdon's exaggerated testimony lacks any appreciable degree of reasonableness, reliability or credibility. Her entire testimony failed to produce a firm or a precise belief as to the truth of the allegations sought to be established, and the Commissioner failed to prove through this witness that Mr. Merica was confrontational and argumentative with Principal Griffin during unspecified conferences while in her office. Negative Statements Continuing, Secretary Bragdon testified, unconvincingly, regarding unidentified sounds she overheard on the intercom system: rom the sounds I overheard on the intercom system when Mr. Merica called the administrative office for help with control of his students,-not all the time but sometimes you could hear disorder, confusion, kids maybe not under control. (Emphasis added) From unidentified sounds she allegedly overheard on the intercom, Secretary Bragdon concluded that the sounds she heard were "disorder," and, from that, she inferred that the "kids were maybe not under control" in Mr. Merica's class. The intended inference that Mr. Merica's "student behavior management and student control" was not effective at unspecified times, alluded to by this testimony, is rejected for want of reasonable credibility. Secretary Bragdon's testimony in findings 33, 34, and 35 consisted of exaggerated and speculative conjectures. As such, her testimony was not substantial in specifics nor competent in knowledge to establish as fact the allegations testified to in findings 33, 34, and 35 hereinabove. Secretary Bragdon was secretary to both Principal Payne and Principal Griffin, but there is no record evidence of the school year the alleged intercom activities she purported to have overheard, and of which she testified, occurred. The Amended Administrative Complaint alleged misconduct during the period 1994 through 1999 (1999 ending December 31, 1999), not throughout 1999-2000. The ambiguity regarding the time period the alleged conduct occurred is resolved in favor of Mr. Merica. Subversive Statements Secretary Bragdon also testified about a personal conversation between her and Mr. Merica "shortly after the Oklahoma City bombing."4 Although she could not remember the day, month or year, she specifically recalled: I was in the cafeteria getting coffee and Neil was also in the cafeteria. He brought his children in there to have breakfast. And he was up at the same table that I was and he basically just said that, you know, - - everybody was basically talking about it and I don't know word for word, but basically what he said was it would be good if we could do something like that here, but we just have to make sure the administration are in the building. This statement, if true, demonstrated, at its worst, bad taste on behalf of Mr. Merica. When considered within the context (everybody was talking-about it), circumstances (just after the news report of the occurrence), and the location (at a table in the cafeteria) with everyone talking, the alleged statement does not evidence a manifested "subversive" intent of Mr. Merica, as alleged in the Amended Administrative Complaint. Sectary Bragdon's demeanor, attitude, and manner of responding to questions seemed calculated to provide little light on the substantive facts of the situation, but rather an exaggerated version of the nature and circumstances of the incidents. I find the testimony of Secretary Bragdon unworthy of reliance upon as a true foundation to support findings of fact as to the matters testified to hereinabove. Negative Attitude Toward Administration Statements Cynthia Blake, a DEES attendant at Foster from 1985 to 2002, testified regarding "statements" allegedly made by Mr. Merica that demonstrated his negative attitude (state of mind) toward the school administration. When asked the following question: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration," Ms. Blake gave the following answer: Well, there was a lot and sometimes he would just walk away. He did not want to hear it. He would walk behind me, say it again, and would say, you know, be careful or whatever and it never changed. At this one given time, we was just outside and I was watching some kids, I think, and he came up and they was painting the school and he just said that ought to get all the kids out of the school and blow the school up and leave the administration in the school. During her earlier deposition, Ms. Blake was asked: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration?" As seen below, her response then differed from her present testimony. Q. Do you remember a situation where Mr. Merica said something about blowing up the school? A. Yes. Q. Can you tell me about that? A. Well, we at some point always told Neil, you know, to you know, you'd better calm down because you never, you know, people -- the teachers and -- I mean the administration -- you have to just watch yourself. There are certain things you just can't say and probably in a joking way, but it was a lot of stuff going on at the time. The schools had been with firearms and up in Columbine and different situations, so probably it was in a -- I don't know what to say -- but he just spoke of we need to get all the kids about and leave the administration in and blow up the school. Q. Do you remember saying that it was probably in a joking manner back when your deposition was taken? A. Well, basically when Neil spoke about things, he laughed about it, so at the time, like I said, there was so much going on between the news and that, I would never know anymore. Q. All right. So he might have though it was funny, but you didn't think it was funny; is that fair? A. No, sir. The testimony of Ms. Blake, mirroring the testimony of Secretary Bragdon, demonstrated bad taste on behalf of Mr. Merica. When subject to cross-examination about the statement or other aspects of her prior testimony, Ms. Blake became vague and uncertain about her prior versions and was inconsistent on matters that seriously undermined her credibility. Consideration of the situation and circumstances when Mr. Merica made the alleged statement supports a reasonable inference that Mr. Merica's statement was a crude and boorish attempt at making a joke, not in good taste, but nonetheless a joke. The Commissioner did not prove by the above testimony that Mr. Merica was hostile and subversive or intended his comment as derogatory and disrespectful toward his principal as alleged in the Amended Administrative Complaint. Physical Restraint and Classroom Management Allegations Pat Drennan, assistant principal at Foster, by her admission was primarily responsible for the school's educational curriculum. In her "educational curriculum" capacity, Ms. Drennan assisted teachers, students, and parents in curriculum matters and assisted teachers in discipline in the classroom, student testing, and student grades. She was unable to recall the year and date, but she recalled she had been in her position as assistant principal for four years, approximately 1998 through January 2004. When asked about the Board's policy regarding an educator's physical restraint of students, Ms. Drennan responded that her "understanding" of the Board's policy was: [B]asically teachers are not to restrain students unless they have been trained-- unless they have ACT training they can not bring a child down on the ground or anything. She did not know whether Mr. Merica was ACT trained or not at all times pertinent and at the time of her testimony. No writing in the record speaks to this issue, and no predicate was laid to show that the witness was in a position to know the Board's policy. This witness stated her "understanding" of the applicable rule. A finding of fact that a violation of a penal statute or rule occurred cannot be based upon loose interpretations and problematic evidence, but on evidence as substantial as the penalty for violation of such statue or rule. The testimonial evidence given by this witness failed to establish the "rule." Thus, her opinion regarding violation of a rule she does not know, lacks a foundation upon which a reasonable degree of reliability will support. Ms. Drennan recalled one occasion on which (no evidence of the month and year) on which she instructed Mr. Merica "not to restrain a student she 'thought' he had restrained." She recalled making one general suggestion (not explained) to Mr. Merica regarding classroom behavior management, adding, but "he did not have to do it." Ms. Drennan did not know whether during his last year at Foster (1999-2000) Mr. Merica taught the entire year. When asked if she knew why Mr. Merica left Foster she answered: [I]n my mind, the situation was that he no longer was able to control himself and the class--the management of the class. No evidence of record speaks to the issue of a standard of classroom management from which to evaluate Mr. Merica's conduct. To demonstrate this issue the Commissioner's reliance on witnesses who could but state their "understanding" from various and dubious vantage points, failed to prove what was required of Mr. Merica and the specific conduct that fell below the required standards. The intended inference to be drawn from the above testimony of Foster's assistant principal, that Mr. Merica was "unable to control himself" and "unable to manage his class" and thus incompetent, is rejected for a lack of personal knowledge on behalf of the witness and evidence of an objective standard from which to evaluate "control" and class "management" by a teacher. The Commissioner failed to establish, by the testimony of Ms. Drennan, that Mr. Merica was unable to control himself and unable to manage his class and, thus, demonstrated incompetence, during the (unspecified) period inferred by Ms. Drennan's testimony, as alleged in the Amended Administrative Complaint. Ms. Drennan testified, unconvincingly, about hearsay from another teacher, Ms. Parson, who told her, "for information only." According to Ms. Drennan: Ms. Paula Parson, a teacher who did not want anything done about it but for information only, told her she was apprehensive about Mr. Merica bringing her lunch and giving her unwanted attention. Paula Parson was not called to testify. The intended inference of unwanted attention is not accepted by the undersigned. The Commissioner failed to prove by the uncorroborated hearsay testimony of Ms. Drennan that Mr. Merica sexually harassed several different co-workers, as alleged in the Amended Administrative Complaint. Code of Conduct and Rules of Professional Responsibility When asked if she was familiar with the Code of Conduct and the Rules of Professional Responsibility, Ms. Drennan again, unconvincingly, testified: I think yes, basically, the rule that deals with personal conduct that seriously reduces an educator's effectiveness in the school district,--when someone coming into the district-I would want to look at previous-- what had happened previously with the person and I would think they would be ineffective; I would find them ineffective in the fact if they were not open to interaction with faculty and staff in an appropriate, professional way; They are ineffective if they don't know how to deal with children in the proper way. If they couldn't tell me that they could do a management plan--have one before they walked in. I would find them ineffective if they were not--didn't have the right tools for teaching, basically, and those tools are many. Besides a degree, it would be how you get along with people, how open you are to learning new things, and that type of thing. There were no incidents of Mr. Merica being insubordinate or confrontational with Principal Payne witnessed by Ms. Drennan. This witness presented no evidence that she had personal knowledge of Mr. Merica's classroom management skills or the lack thereof. Her "opinions" about what conduct would be inappropriate and what conduct that would seriously reduce an educator's effectiveness (and competence) in the school district are her "opinions" and nothing more. The "right tools for teaching, basically, and those tools are many," standard coming from an assistant principal does not establish an objective and acceptable standard by which to evaluate a teacher's competence as a professional teacher. Viewed most favorably, the "opinions" of Ms. Drennan are not appropriate, objective standards by which to determine whether the professional conduct of a fellow teacher fell below the Code of Conduct and/or violated the Rules of Professional Responsibility. The Commissioner failed to prove, by the testimony of Ms. Drennan, that during the period starting approximately in 1998 and continuing through December 1999 Mr. Merica engaged in conduct that fell below the Code of Conduct and/or violated the Rules of Professional Responsibility as alleged in the Amended Administrative Complaint. Confrontations with Principal Griffin Ms. Drennan testified that at some point in time (of which she was not sure and unable to identify) her office was located next door to Principal Griffin's office, and she would "intentionally" leave her door open. According to Ms. Drennan, by leaving her door ajar she "could overhear and 'tell from the tone of the voice'--when someone was loud and confrontational like that [sic] you just never know and I just worried that there could be something else happening." Asked what she meant by "loud and confrontational," Ms. Drennan responded: Well, anger. Obviously, the man was angry when he was in there sometimes. I'm not saying every time, but the times that we're talking about like that, he was angry and anger sometimes can lead to other things, so . . . Ms. Drennan purportedly could overhear Mr. Merica speaking with her door open, but she gave no testimony of what, if anything, she overheard Mr. Merica say. Ms. Drennan's testimony, regarding loud talking by Mr. Merica toward Principal Griffin, inferring his state of mind as being emotionally out of control while conferencing with his principal, is speculative conjecture. There is no record evidence that this witness observed nor personally confirmed with Principal Griffin that Mr. Merica was, in fact, angry with Principal Griffin on each of those "sometimes" occasions she heard "someone was loud." This witness did not observe nor subsequently confirm with Principal Griffin that Mr. Merica pointed his finger her face, during those unspecified occasions when she sometimes left her office door ajar and sometimes heard someone was loud, as alleged in the Amended Administrative complaint. Secretary Bragdon recalled Mr. Merica yelling “everyday all the time,” and Ms. Drennan contradicts that testimony recalling he was loud and angry, but, qualifying that statement, she added she was “not saying every time [he was in the office].” The testimony of both witnesses, considered separately and together, failed to produced a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Refusal of Failure to Comply with Requests and Instructions When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of any failure or the refusal by Mr. Merica to comply with an identified request or instruction given by either Principal Payne or Principal Griffin. When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of Mr. Merica having made derogatory and/or disrespectful remarks about Principals Payne or Griffin in her presence. Ms. Drennan's opinion that Mr. Merica deviated from her "understanding" of the principles contained in the Code of Conduct and Rules of Professional Responsibility standards were speculative and insufficient to establish as fact that Mr. Merica deviated from or violated the Code of Conduct and the Rules of Professional Responsibility. The Commissioner failed through this witness to establish any violation or any deviation from standards found in the Code of Conduct and the Rules of Professional Responsibility by Mr. Merica. Ms. Drennan failed to establish an objective, ascertainable standard of professional level of effective teacher behavior and teacher classroom management for SLD and IP students. Her testimony and the intended inferences regarding Mr. Merica's alleged ineffective and unprofessional student behavior, teaching, classroom control, and student management is incompetent to establish as fact that Mr. Merica deviated from clearly, established professional standards as alleged in the Amended Administrative Complaint. Ms. Drennan testified as did other co-workers who were present that Mr. Merica's had occasional disruptive verbal conduct in faculty and staff meetings and that during collegiate discussions he often demonstrated an argumentative attitude. The Commissioner proved, through the testimony of Ms. Drennan and other witnesses who were present and testified, that at one or more (unspecified) faculty and/or staff meetings that Mr. Merica occasionally engaged in disruptive verbal conduct accompanied by an argumentative attitude. Derogatory and/or Disrespectful Remarks About Principal Shelley Opila worked as a PI and ESE teacher at Foster from August 1996 to July 2001. When asked to give an example of "bashing the principal," Ms. Opila testified that during (unspecified) faculty meetings, Mr. Merica would often state: "Oh, that will never work," in response to unspecified matters under discussion. There is no record evidence of the situation or circumstances of the particular subject matter under discussions when this witness overheard the statement. Viewed most favorably, the isolated statement, "Oh, that will never work," is a personal opinion and, as such, does not evidence a manifest intent by Mr. Merica to make derogatory statements about the Foster administration as alleged in the Amended Administrative Complaint. Ms. Opila testified that she overheard Mr. Merica several times voice his personal opinions "[t]hat you have to be blonde or a female," and "It's who you know to be a principal." Without evidence of the situational circumstances when the statement was made, Ms. Opila assumed that Mr. Merica was referring to one or both, Principal Payne and/or Principal Griffin. There was no corroboration from either Principal Payne or Principal Griffin that Ms. Opila conveyed her concerns to either of them regarding Mr. Merica's alleged derogatory and/or disrespectful remarks. Viewed most favorably, the general statement "You have to be blond or a female," could have been a true statement if the record evidence established the color of Principal Payne and Principal Griffin's hair during their respective tenure as principal. The record evidence, however, does not. As reflected in the record, the testimony of this witness does not evidence a specific intent of Mr. Merica to make derogatory comments about Principal Griffin or Principal Payne. The record evidence reflects that approximately 120 educational personnel worked at Foster during the time in question and among that number only five or six were males. The reference to "blond and female to be principal" applied equally to approximately 100 females at Foster who, if they were not at the time the opinion statement was made, were capable of being blond and also capable of being a principal. Neither Principal Payne nor Principal Griffin testified regarding their respective hair colors during times pertinent to when the alleged statements were made by Mr. Merica, and the undersigned did not notice and can not recall with any certainty, the hair color of each of the twenty-plus female witnesses who testified in the proceeding. With the presence of more than 100 other females at Foster, and no evidence of the hair color of the principals at any time, an inexplicable ambiguity of "intent" is here presented. The ambiguity is resolved in favor of Mr. Merica. The Commissioner failed to prove, clearly and convincingly, through the testimony of Ms. Opila, that Mr. Merica intended to, and did specifically, make the derogatory comments about Principal Payne and/or Principal Griffin by the "blond [hair color] to be principal" statement as alleged in the Amended Administrative Complaint. Mr. Merica's Students Performance Ellen Lipari was a teacher of third and fourth grade PI students with various physical ailments and/or traumatic brain impairments from the 1992-1993 school year to approximately the 1997-1998 school year. She taught forth grade PI students during the same five-year period Mr. Merica taught first grade PI students. According to Ms. Lipari: [U]nder the pull-out school board policy in effect during that time, Mr. Merica would pull out and send his kindergarten and first grade level PI students to her third and fourth grade level classes. At some unspecified period during the five-year time period, she and Mr. Merica switched grade levels, Ms. Lipari moved down and taught the kindergarten and first grade level PI students, and Mr. Merica moved up and taught the third and fourth grade level PI students. After the switch, she would send her kindergarten and first grade level PI students to his third and fourth grade level classes. According to Ms. Lipari, during the 1997-1998 school year she had many opportunities to observe students Mr. Merica taught when they were thereafter assigned to her class. During that year, she personally observed Mr. Merica's teaching methodologies, his classroom management methods, and his in- class teaching conduct and style. Ms. Lipari described her impressions, gained from close, extended, daily and weekly contact, of his classroom control and management skills and his teaching skills of PI students with various physical ailments and traumatic brain impairments as: Well, you know, he was a very technically-he was technically doing his job, but there was a lot of humanized things that you do with younger children to try to get them to learn to read and those kinds of things that primarily he did not do. He was mostly teaching out of the textbook and trying to teach very specific things and not doing the kinds of things and that's why we decided it would be better if I moved down so that I could do more mothering and maternal type activities and maybe the older children would respond better to having a man teacher. Alleged Complaint from an Unidentified Mother Ms. Lipari moved down to teach the kindergarten and first grade level PI students, and to provide what she described as "mothering and maternal type activities," in keeping with the stated policy and goal of Principle Griffin as chief of the Foster administration. As a male teacher, Mr. Merica could not provide "mothering and maternal type activities to first grade level PI students," and it was not established that "mothering and maternal type activities" were requirements of all teachers, male and female, by this policy. During an unspecified period after she moved down to teach the kindergarten and first grade level PI students, unidentified parents of her former kindergarten and first grade student(s) called her complaining to her about the differences in the curriculum used to teach their children who were then in third or fourth grade levels under Mr. Merica. According to Ms. Lipari, some unidentified parents of PI students complained to her that "their former kindergarten and first grade children had been allowed to do certain things, like watch TV programs to which they had become accustomed." Based upon complaints from parent(s) she could not identify, Ms. Lipari reached conclusions and, based upon those conclusions, offered her opinion: I personally did not see any educational benefit to students watching TV because our kids [PI] are at least developmentally delayed, if not mentally handicapped, as well as being physically impaired because those children are primarily mentally impaired. Most of our children's IQs go maybe up to 70-75, so the kind of math that you would do in The Price is Right [TV program] would not be valid for those age level of children. During her years of working with Mr. Merica and observing Mr. Merica's teaching methodologies, his classroom management, and his in class teaching conduct, she never once personally observed Mr. Merica's students watching TV programs. Ms. Lipari's recollection of one phone call and her failure to identify the parent(s), who were so concerned about their children that they personally called Ms. Lipari, fairly detracted from the weight and believability of her testimony rendering it unreliable to establish facts alleged therein. Her testimony was further diminished by the lack of corroborating testimony from other witnesses. Ms. Lipari's testimony failed to produce a firm belief, without hesitancy, as to the truth of the allegation sought to be established. Ms. Lipari's opinion regarding educational benefits derived from watching a TV program, based upon the hearsay of unnamed parent(s), failed to prove, such activity actually occurred, or if it did occur, failed to prove that Mr. Merica’s use of such methods and skills were ineffective teaching methods and deviated from the Code of Ethics or Standards of Competent Professional Performance standards as alleged in the Amended Administrative Compliant. IPE Preparation and Assistance Ms. Lipari testified that she assisted Mr. Merica, on unspecified occasions, by "explaining the particulars of an IEP and the mechanics of writing an IEP." According to Ms. Lipari: [F]or every student with an IEP, the teacher, parent and therapist [another teacher] agree on goals and objectives that in their collective determination can be achieved by the child during the forthcoming school year. The IEP is a joint collaborative endeavor requiring discussions, disagreements, compromises and finally an acceptable document; subject to subsequent modifications. Ms. Lipari gave her personal belief that: [T]he teacher(s) has to find different ways of handling their PI students' problems because each child is different, according to their disability, according to their ability to write or not be able to write. Some PI children cannot write at all. Some PI children cannot speak at all. Therefore, the teacher has to find some ways to show that the child can read. Because he can't read out loud to the teacher, the teacher would find different methods that can used to show the student is making progress. IEPs are personalized crafted documents designed to address the perceived needs and method of instructions to address the need(s) of each handicapped student. The evidence of record does not speak to the issue of accepted standard(s) for writing an IEP nor is there evidence that Mr. Merica did not comply with accepted standards for writing an IEP. The Commissioner's reliance on Ms. Lipari's "belief" that Mr. Merica needed her assistance in writing one IEP, without more, failed to establish that Mr. Merica was incompetent in his professional teaching skills and/or in IEP writing and/or implementation skills. Viewed most favorably, Mr. Merica had five to six years of writing IEPs with other teachers and counselors before Ms. Lipari's offered assistance which she characterized as "explaining the particulars of an IEP and the mechanics of writing an IEP." The intended inference of this testimony requires first a belief that other teachers and counselors who had worked with Mr. Merica on IEPs during the preceding five years (1987-1992) either did not know "the particulars of an IEP and the mechanics of writing an IEP" or were unable or unwilling to recognize a need for "the mechanics of writing an IEP" and to offer and suggest methods of improvement to Mr. Merica, to include Principal Payne who worked with Mr. Merica for almost 10 years. The testimony of this witness was not corroborated. The testimony of Ms. Lipari failed to include essential details that are central to the facts sought to be established and, thus, failed to produce any belief of conviction as to the truth of allegations sought to be established. The testimony of Ms. Lipari also failed to demonstrate a single refusal by Mr. Merica to accept and implement one positive necessary suggestion that was, in fact, made by Ms. Lipari to Mr. Merica relating to teaching students with IEPs. This testimony failed to establish the existence of, the beginning of, or the continuation of, a demonstration of professional teaching incompetence as alleged in the Amended Administrative Complaint. Physical Restraint and Control of Unruly Male Students Ms. Lipari recalled one occasion an unidentified male student in her class was unruly in the hall. During the time her male student was being unruly, Mr. Merica came along with his class. He asked her if he could be of help with her unruly student and according to her, without waiting for her to reply, physically restrained her unruly male student. No evidence of record establishes an injury to any unruly male student that resulted from the physical restraint by Mr. Merica. This testimony demonstrated that on one occasion Mr. Merica restrained one unruly male student in the hallway who was in Ms. Lipari's class. This evidence also demonstrated that PI and SLD students were routinely unruly in the hallways and elsewhere in the school, when Ms. Lipari was the teacher in control and in charge as well as when Mr. Merica was the teacher in control and in charge of a class. This evidence also demonstrated the propensity of young male students to react to female teachers and to male teachers in a different manner. Ms. Lipari's testimony regarding unruly conduct of students, in the hallways when Mr. Merica was the teacher in charge, does not evidence his lack of ability to control and manage his unruly students, as alleged in the Amend Administrative Complaint. This testimony does establish as fact that Mr. Merica restrained an unruly male student during a period when his ATC certification was expired. This technical violation of ATC certification by Mr. Merica is accompanied by the fact that the unruly student was unhurt; other PI students were not harmed; and Ms. Lipari, a female, who provided "mothering and maternal type activities," was rendered assistance by a male co-worker, in keeping with the school's policy, according to Ms. Lipari, of having a male teacher in charge of the older and larger male PI students. Ms. Lipari further testified that on one unspecified occasion when she was present in the school hall, Mr. Merica's class was "very loud and unruly." This is the same witness whose class had an unruly male student in the hall when Mr. Merica restrained him. According to Ms. Lipari, during Mr. Merica's loud and unruly class in the hall incident, her class was under her supervision and her volunteer, an unnamed "grandmother," who was assisting her with her class on that unspecified date. According to Ms. Lipari, she and the grandmother observed Mr. Merica: [M]oving from the front of his class line to the back of his class line, swinging his arms back and forth for his unruly students to get in line and stay in line; but, he was not swinging his arms at his students or in their faces. "Grandmother(s)" are community volunteers who come in to assist teachers with PI and SLD students. According to the witness, the objective of grandmother assistants is to provide a soothing and calming presence in the classrooms. Assuming the intended inference to be drawn from this vague, non-explicit, testimony was to demonstrate Mr. Merica's inability to control his class and his unprofessional conduct in the presence of an unidentified member of the community, it failed. The testimony in finding 70 above was not corroborated by other witnesses and was sufficiently vague so as to cause doubt and raise substantial issues of credibility. Viewed most favorably, the above testimony failed to produce a firm belief of the truth of the allegations sought to be established. The Commissioner failed to prove, through the testimony of this witness, that Mr. Merica's conduct was inappropriate or unprofessional in any manner toward his students in the hall at some unspecified period or in the presence of a member of the public/community as alleged in the Amended Administrative Complaint. Negative Feelings About School Administration Ms. Lipari acknowledged that Mr. Merica was a very outspoken person on all issues he addressed. From that observation she went on to testify about an incident in the teacher's lounge when she overheard him make the statement: "[n]o woman was going to tell him what to do." From overhearing that part of a single statement at some unidentified time and without providing the circumstances and context in which the alleged statement was made, Ms. Lipari assumed she knew how Mr. Merica felt about Principal Payne, Principal Griffin and, in general "all females." Based on her assumptions, Ms. Lipari concluded Mr. Merica's statement was specifically intended to be derogatory about a particular unnamed principal. She further assumed the statement "no woman was going to tell him what to do" included her. Based upon those assumptions, she inferred Mr. Merica was speaking first, in a negative fashion; second, he was speaking about all women in general; and third, he was speaking about Principal Griffin in particular. Ms. Lipari's testimony regarding Mr. Merica's general opinion statement "no woman was going to tell him what to do," without establishing the context, situation, and/or circumstances at the time the statement was made failed to establish anything other than the statement was made. To this non-specific and ambiguous testimony, any number of meanings can reasonably be attributed, including his private and personal relationships with women in his past. Testimony of this isolated statement is not competent to establish a manifested intent on behalf of Mr. Merica to be disrespectful toward Principal Griffin or Principal Payne or women in general. The testimony in finding 72 was not placed in a situational circumstance that would have enabled the undersigned to render an objective evaluation. The alleged out-of-context statement is not competent to establish as fact allegations that Mr. Merica intentionally made derogatory and disrespectful statements about Principal Griffin and other female co-workers as alleged in the Amended Administrative Complaint. IEP Preparation and Principal Griffin/Mr. Merica Relationship Linda Thomas was an ESE specialist at Foster from 1997 through 2002. Her duties included giving suggestions for curriculum or classroom management, assisting teachers with paperwork, and assisting resource teachers as needed. The usual method of contact would originate from a principal who would call Ms. Thomas and request her to lend assistance to a specific teacher. Answering the open-ended question, "what caused her concern about the Principal Griffin-Teacher Merica relationship," Ms. Thomas, without providing the year or month, answered: In my opinion, I don't believe that Mr. Merica had much respect for Ms. Griffin- -that he demonstrated that in the school setting. A number of times I overheard him say things such as that he would be around longer than she would. He was frequently making comments in faculty meetings just in general about the leadership and the administration in the school and his dissatisfaction with it. Ms. Thomas' testimony confirmed testimony of others that Mr. Merica often spoke out in faculty and staff meetings. Her opinion regarding what she "believed" to be Mr. Merica's opinion about the administrative leadership, even if true, was based on the alleged "frequency of unspecified comments," and her opinion that "I don't believe that Mr. Merica had much respect for Ms. Griffin--that he demonstrated that in the school setting," failed to establish as fact any allegation contained in the Amended Administrative Complaint. Answering the question regarding Mr. Merica's preparation for IEP meetings, and without identifying the number of IEP meetings she attended with Mr. Merica during the 1994 through 1999 period in question, Ms. Thomas stated: I believed preparation was very minimal. There was not -- he was not always ready. Most of his IEPs were all the same. Yet, it's -- an IEP is an individual education plan which is written specifically for each child, so every child in your class should not have the same thing written for them. Regarding his preparation of IEPs during the five-year period from 1994 to 1999, and without evidence of the number of IEP prepared by Mr. Merica and/or the number of occasions she personally inspected one or more of those IEPs, Ms. Thomas concluded that "[f]requently he wasn't prepared." This witness’ "belief" was not a "belief" based upon personal knowledge or facts. Though she believed "most of his IEPs--frequently not prepared," there is no evidence of record that she had personal knowledge or had occasion to review the content of an IEP prepared by Mr. Merica upon which to base her "belief," and, without more, her belief is speculative. Ms. Thomas was not qualified as an expert on IEPs and her personal "beliefs" and opinions regarding unidentified IEPs that she may or may not have reviewed, is lacking in preciseness to produce a firm belief as to the truth of the allegations sought to be established. As such, Ms. Thomas' testimony is not competent to corroborate and does not corroborate or support Ms. Lipari's testimony purporting to support the allegation that Mr. Merica's preparation of IEPs "in the school year of 1994- 1995 evidenced his ineffective teaching performance and demonstrated the beginning of his alleged incompetence that allegedly continued undiminished until not later than the end of the 1999 calendar year," as alleged in the Amended Administrative Complaint. The Commissioner failed through the testimony of Ms. Thomas to establish as fact or to prove that Mr. Merica initially or began to demonstrate an inability, refusal, improper, or any other negative aspect of his professional teaching responsibilities at any time during the 1994-1995 school year. Ms. Thomas testified of overhearing statements made by Mr. Merica of which she shortly thereafter made the following written notation dated August 12, 1999: This morning at bus arrival time Mr. Merica left his students unsupervised to go into the clinic to talk with the nurse. His conversation consisted of suggestions that the clinic should have cell phones that could be used at home. He also commented that he should talk to the television reporters who were outside to let them know how the county runs things. He came in and out of the clinic at least 3 times in a 10 minute time span and made these comments in the presence of staff and at least one student. Ms. Thomas' testimony and her subsequent written notation regarding a conversation consisting of "suggestions" that the clinic should have cell phones and that Mr. Merica "should talk to the television reporters who were outside," if true, were suggestions and nothing more. The witness did not know why or for what reason Mr. Merica entered the clinic. The identification of the staff member (other than herself) or identification of the unnamed student alleged to have been present and presumably overheard Mr. Merica's suggestions are not in the record. The witness' testimony demonstrated a distinct lack of a specific memory of the facts at issue to which she testified. The testimony in findings 77 through 80 failed to establish a firm belief without hesitancy as to the truth of the allegations sought to be established. Classroom Visits and Observations Ms. Thomas testified that over an unidentified three- year period she visited and observed Mr. Merica teaching his PI class approximately ten times with each visit lasting ten to 30 minutes. Ms. Thomas' visits and observations were neither made at the request of the principal nor were they made after notice was given to Mr. Merica. She did, however, make note of a single incident outside the school cafeteria, apparently for future reference and not to help a fellow teacher; but of the ten visits she made to observe and presumably help a fellow teacher, she made no written notations evidencing the dates of her visits and observations, at or near the time of each visit. Her alleged visits to Mr. Merica's class, without specifying the reasons for her visits, were more or less one co-worker visiting another co-worker; if, in fact, those ten, undocumented visits actually occurred. Documents Prepared Critical of Mr. Merica's Performance Ms. Thomas did, however, within a 45-day period, prepare seven documents, each critical of either Mr. Merica's conduct or professional teaching methods, and purportedly gave a copy of each document to Principal Griffin. The seven documents prepared by Ms. Thomas were all dated over a three-month period (August 11, 1999 to October 27, 1999), when from evidence of record, Foster administration was preparing to recommend to the Board termination of Mr. Merica's contract employment with the county. Ms. Thomas dated her first document August 11, 1999. She dated her six additional documents Augusts 12, October 19, 20, 21, 25, and 27, 1999. The seven documents prepared by Ms. Thomas did not include any of the alleged ten visits she made over the three-year (from 1997 through August 11, 1999) observation period of Mr. Merica to which she testified from long past memory in Finding of Fact 81 hereinabove. No other witness, including Mr. Merica, corroborated Ms. Thomas' alleged ten visits to Mr. Merica's class. I find the lack of documentation and the witness' lack of recall ability regarding specifics that occurred more than four years past an insurmountable barrier in accepting the witness' testimony as creditable on those significant points sought to be established. When asked on cross-examination whether Principal Griffin requested her to prepare the two August 1999 documents and the five October 1999 documents, Ms. Thomas suffered a sudden lapse of memory. When asked about each document individually, Ms. Thomas gave answers of either "I don't remember," "I couldn't say for sure" or "I couldn't guarantee." The seven documents prepared by Ms. Thomas in August and October 1999 contained alleged statements made by Mr. Merica, some personal observations, a prepared historical statement beginning with her first meeting with Mr. Merica in 1996 throughout 1997 and 1999, and hearsay statements from several students that were not recorded at or near the time they were made. The witness' failed memory, coupled with her inability to recall if she was asked by her principal to prepare those seven documents within such a short time span, rendered suspect and unreliable both the author and the content of her seven documents. The witness was defensive, evasive, and reluctant on significant points, evidenced by her lack of memory and confusion regarding who made the request and for what purpose she wrote seven different documents in a short time period. Her answers were not forthright and this aspect of her testimony raised insurmountable issues regarding her credibility. The testimony of Ms. Thomas lacked sufficient reliability, due to her uncertainty, to produce a firm belief in the mind of the undersigned as to the truth of the allegations sought to be established. Classroom Management by Mr. Merica Compared to Classroom Management by Other Teachers When asked about problems regarding classroom management Mr. Merica had with his PI classes as "compared with class room management problems of other teachers," Ms. Thomas answered "[t]here are children in most classes who present behavior problems." Her memory was better on this issue and she recalled observing a few instances with two or three students creating problems in Mr. Merica's class. However, she did not identify the "other teachers" to whom she compared Mr. Merica nor did the witness establish "the other teachers" class room management standards. I find the witness' testimony was intentionally slanted to exaggerate the nature of Mr. Merica's classroom management without providing specific incidents from which an objective evaluation could have been made. The Commissioner failed, through the testimony of Ms. Thomas, to prove allegations that Mr. Merica demonstrated incompetence as alleged in the Amended Administrative Complaint, by evidence that he had "more" behavior problems in his ESE and PI classes than other unidentified ESE and PI teachers similarly situated. Classroom Management by Mr. Merica as Compared to Classroom Management by New Teachers with Less Teaching Experience Ms. Thomas testified, unconvincingly, that after Mr. Merica left Foster in 2000, new unidentified teachers came in and taught self-contained SLD classes with acceptable classroom management style. With improved memory on this issue, Ms. Thomas recalled that she observed the new teachers' classroom management style but could not remember if she documented classroom management problems observed with the new teachers, as she had with Mr. Merica. Assuming the intended purpose of this particular testimony was to demonstrate an appreciable difference between Mr. Merica's classroom management skills and teaching methods, after years of experience, to the classroom management skills and teaching methods of new teachers with much less experience, it failed. The testimony of Ms. Thomas regarding the issue of her comparison of class management and teaching skills of Mr. Merica to those of new unidentified teachers, including documents she prepared, those referred to, and the alleged acts therein, whether used for comparison or not, occurred beyond the 1994 through 1999 time period alleged in the Amended Administrative Complaint or some comparable pleading. On that basis, this testimony of Ms. Thomas must be, and is, rejected in toto. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987). The documents Ms. Thomas prepared and the testimony she presented herein above in findings 78 through 85 failed to establish as fact that on those occasions Ms. Thomas observed Mr. Merica, he failed to perform to professional expectations as a competent teacher as alleged in the Amended Administrative Complaint. Statements Made to Principal Griffin's Daughter Tamiko Council believed, but was not certain, that she was a DEEDS attendant at Foster the 1997 to the 1999 or the 2000 school year. She testified that during a (unspecified) summer school session, Principal Griffin's daughter had been introduced to her earlier in the day but she was unable to give the date of the incident. As she recalled, she and Principal Griffin's daughter were coming from the bus ramp in route to the cafeteria when Mr. Merica noticed Principal Griffin's daughter and, in her presence, said to the child: You need to tell your mom to quit worrying about teachers around the school. She needs to focus more on what the children are doing. Later that day Principal Griffin called Ms. Council into her office and made inquiry regarding the incident, as told her by her daughter, and Ms. Council confirmed the incident had occurred. Mr. Merica acknowledged making a statement to Principal Griffin's daughter. The Commissioner proved that Mr. Merica made a statement to the daughter of Principal Griffin. The appropriateness of a teacher stating his opinion to a young person who was a student attending a Hillsborough County school was inappropriate. However, the statement alone, under the above circumstances, does not demonstrate a "failure to protect student[s] attending for educational purposes from harmful conditions." There is no evidence of record offered to demonstrate that Principal Griffin's daughter, after the comments by Mr. Merica, "experienced harmful conditions to her educational purposes," during the summer she was at the school of which her mother was principal. Pamela Wilkins was a teacher of educable mentally handicapped students at Foster for a five-year period from 1993 to 1998. During the three-year period of approximately 1995 through 1998, Ms. Wilkins was an ESE specialist. Harassment and Unreasonable Interference with Co-workers Ms. Wilkins testified regarding an incident that allegedly occurred when she asked Mr. Merica into her office for an unspecified discussion. Ms. Wilkins did not remember the school year or the month the incident of which she testified occurred nor did she remember the situational circumstances, the context or the issue over which she and Mr. Merica had their alleged discussion and subsequent disagreement. With no memory of any specifics as to why she would ask him into her room, Ms. Wilkins only recalled Mr. Merica’s discussion with her that she characterized as "his getting upset and her saying nothing." Ms. Wilkins did not know why she invited him into her office, but emphasized her "only reason" for inviting "him into her office would have been to discuss an ESE issue." There is no record evidence regarding the ESE issue of such importance that this witness called Mr. Merica into her office for a discussion of an issue she does not recall, when her "only" time calling him into her office was so memorable. Having established her ability to ”call Mr. Merica into her office" for reasons unknown to her, this witness then testified about some purported disagreement between she and Mr. Merica. Even assuming the alleged disagreement occurred and was, in fact, over an ESE issue between she and Mr. Merica during their single discussion the witness testified: I really don't recall the entire situation. The main thing 'is just his response.' We were talking about--obviously it was ESE issues and he ended up getting upset, and I was on one side of the desk and he was on the other side. He ended up leaning over the desk and was in my face. His veins in his neck were bulging and kind of trembling and just was yelling at me and I was completely stunned and shocked the way he had responded and so I really did not say anything else at that time. The testimony of Ms. Wilkins evidenced her characterization of one party's reaction to an alleged disagreement over an alleged and unidentified ESE issue. Absence evidence of the context, circumstances, and the ESE issue that precipitated the purported disagreement between co- workers, the record contains no basis upon which to determine with reasonable certainty the appropriateness of one party's alleged reaction to the other party's input during a collegiate disagreement. The referenced reaction, even if accepted as factually true, absent evidence of the issue, context and circumstances, failed to clearly and convincingly establish an unprofessional, hostile behavior on behalf of Mr. Merica toward a co-worker, Mr. Wilkins, as alleged in the Amended Administrative Complaint. The witness' apparent stunned and shocked reaction to a co-workers' disagreement with her over an unidentified ESE issue was not so unprofessional and shocking, at the time of occurrence, to compel Ms. Wilkins to report such shocking disagreement to the school administration. It was not of such importance, at that time, to prompt Ms. Wilkins to document her shocking outrage for future reference and possible investigation by proper school authorities. Ms. Thomas' lack of recall of the circumstances to an incident to which she was a major participant, and the record evidence of scant circumstances surrounding the alleged one-party reaction to a two-party discussion and alleged violent disagreement, created an insurmountable credibility gap in her testimony. Based on the foregone, it is found that the testimony of this witness lacks credibility. This testimony is rejected because it is wholly unreliable regarding the truth of the allegations sought to be established. The testimony of Ms. Wilkins in findings 90, 91, 92 and 93, hereinabove, absent record evidence of the issue which caused the alleged disagreement between colleagues, is sufficiently vague and imprecise that it failed to establish a firm belief, without hesitation, of the truth of the allegations sought to be established. The alleged conduct by one party over an unidentified issue during a mutual disagreement between colleagues does not establish unprofessional conduct or a violation of established standard of professional protocol. The Commissioner failed, through the testimony of Ms. Wilkins, to prove that Mr. Merica, while in Ms. Wilkins' office engaged in conduct that was unprofessional, belligerent, hostile, confrontational, and subversive in the workplace toward his co- worker as alleged in the Amended Administration Complaint. Sexual Harassing Statements Made in Presence of Child Evelyn Tait, at all times material, was the administrative data processor at Foster. Before her promotion to administrative data processor, she was a teacher's aide for a few years. Ms. Tait is the sister of Secretary Bragdon. Ms. Tait first qualified her testimony stating that she "believed but was not certain," that the Investigation Manager for the Board (Michael Saia) came to her and asked her if she would write a statement about Mr. Merica. In her effort to comply with the request of the Board's investigator, and on October 2, 2001, Ms. Tait wrote the following document purporting to detail a "forgotten and previously unreported incident" that allegedly occurred, some three years earlier, in 1999. Ms. Tait's efforts to comply with the request of the Board Investigator resulted in Ms. Tait writing the following October 2, 2001, addendum to her 1999 written statement: On August 27, 1999, I wrote a statement regarding Mr. Neil Merica. The statement that I wrote was true and accurate [sic] as I recall. However, I would like to add a time that I was out in the pickup area picking up my son from school. I was in my care [sic] and Mr. MERICA came over to my window and made a commet [sic] regarding to what was under my shirt. I was made to feel very uncomfortable, and was inappropriately addressed [sic] from a teacher to a pa [sic] and also to a parent of a child in this school. Back in August 27, 1999, Ms. Tait wrote: To Whom It May Concern: I am writing this letter to you regarding the actions of Mr. Neil Merica that I have observed. I am a paraprofessional at Foster Elementary School and have only been employed as a permanent employee since the beginning of this school year.[1999] On several occasions, I have seen Mr. Merica screaming at a student with his face being very close to theirs. The child on each occasion looked very scared. Since I am such a new employee at the school, I am not familiar with the discipline procedures of the instructors, but being a parent of an eight year old, I know that the behavior that I have seen him display with the students is very uncalled for. As a parent, I would be very upset if I thought for once that a teacher was yelling at my child in such a manner. I have also witnessed Mr. Merica when he was upset for one reason or another with the administration. He sometimes appears to be out of control, saying things that are unnecessary. I am writing this letter for documentation of what I have observed and for the welfare of the children involved. I am requesting that my name not be revealed to Mr. Merica because being "a smoker", I am in contact with him daily. I am afraid of retaliation from him if he were to find out. Sincerely, Signed by Evelyn B. Tait /s/ The two documents signed by Ms. Tait, and her explanations when questioned, evidenced not truth, but rather confusion caused by this witness' attempt to comply with the request by Mr. Saia, in preparation for her testimony at this hearing. The truth and accuracy of the documents as well as Ms. Tait's understanding, explanation, and lack of credibility regarding these two documents are best demonstrated by her cross-examination: Q. Would you look back at number exhibit 23 again? You wrote that statement on October 2, 2001; is that correct? A. Um-hum. Q. And the first sentence says: "On August 27, 1999 I wrote a statement regarding Mr. Merica." (as read) Were you referring the Exhibit 22? A. I think I was --- Q. All right. You were referring to the other statement when you write that? A. I think I was. Q. I want you to take your time and made sure. That one is dated August 27th, 1999; correct? A. Yes. This happened on two separate occasions. Q. That's what we're going to get to in a minute if you'll let me walk you through this. A. Yeah, it did. Q. You go on to state that you gave a statement back in August '99 and everything you said in that was true, but you want to add something. And what you want to add is this incident that happened at the pickup circle: correct? A. Yes, sir. Q. How long ago had that incident happened at the pickup circle? A. What do you mean, how long ago? Q. How long prior to the time when you wrote this statement? A. I would say probably close to the date that it was signed. Q. Okay. So the incident at the circle would have been close to October 2001? A. I don't remember the dates sir. I don't remember the dates that I wrote the statements. I don't remember the dated. Q. Al right. The incident at the circle -- did you complain about it when it happened? A. Yes, I did. Q. Who did you complain to? A. I went and obviously told the principal's secretary again. I don’t' know who I would complain to. I'm just not going to -- you know, I wasn't out to get Mr. Merica in trouble. Q. I'm not suggesting that -- A. I was just --- Q. I'm not suggesting that you were. [Witnesses instructed by the undersign to answer the question asked by counsel without editorializing] Q. All right. Let's walk back through it. An incident happened at the pickup circle; correct? A. Um-hum. Q. And at some point after that incident, you reported the incident to someone; is that correct? A. It was immediately. Q. Immediately? That day? A. Yes. Q. All right. You got out of your car when you picked up your child? A. No. It wasn't immediately that day. It was -- like I said, the principal's secretary is my sister, so I probably reported it that afternoon. Q. After you picked up your child? A. Um--hum. Q. Is that a "yes"? A. Yes, sir. Q. All right. You took your child home? A. Yes. Q. And then went back to the school to report it? A. No. I probably called her on the telephone. Q. All right. You've said "probably a number of times. Do you -- A. I called her on the -- I don't remember. I'm sorry. I don't remember. You know, I don't remember when it was placed, to be honest with you. I don't remember exactly when it was reported, how it was reported. I don't remember. Q. All right. Did anyone ask you to write a statement about the incident that occurred at the pickup area? A. I don't remember that, either. I guess someone must have asked me to write a statement or I wouldn't have written one. Q. And when you say you wrote one, you're talking about Exhibit 23; correct? A. I wrote this statement as well. Q. Is there another statement besides Exhibit 23 that addresses the incident that allegedly occurred at the pickup circle at the school? A. No. It's this one. Q. So to your knowledge that is the only statement that you made; correct? You made that statement a couple of years after the incident occurred; correct? A. That would be 10-02 -- I mean, 01. Q. All right. A. August 27th is the first statement. Q. Of '99; correct? A. Right. Q. So here we are a couple of years later in 2001 and you're making a statement for the first time about the traffic circle incident; correct? A. Right. Q. That's the only statement that you're written about that? A. Yes. I am very sorry. This is very confusing to me. I wrote statement when they were reported -- you know, when I reported them. I don't remember dates. We're taking how many years ago and I apologize you know. Q. Could it be, ma'am that the first time that you reported the incident that occurred at the traffic circle was around October 2001 when you wrote this statement? A. Yes. When subjected to cross-examination about her two written statements, her confusions, and her lack of personal knowledge of specific details of the alleged curb-side incident, Ms. Tait contradicted her entire testimony as reflected in findings 96, 97, and 98 above, to include the two documents she authored. It is apparent that Ms. Tait's preparation for this hearing, at a minimum included writing a statement three years after the alleged occurrence. It is also reasonable to infer that Ms. Tait's testimony and her 1999 and 2001 documents were an attempt to exaggerate "negative personal conduct on behalf of Mr. Merica" in a decided attempt to appease her employer. Ms. Tait's entire testimony hereinabove, lacks credibility and failed to produce a belief to the undersigned as to the truth of the allegations sought to be established therein. Sexual Harassment of Co-workers Allegations Kelley Kolinsky (f/k/a Toms), a self-employed Occupational Therapist (OT) since 1998, worked at Foster for two and one-half years, doing evaluations and arranging treatment protocol for ESE children. As an OT, she recalled one pre-K evaluation she covered for Kathy Prado, Ph.D., another occupational therapist. Though she tried to recall the persons present at the meeting, she was unable to do so. She recalled an unnamed parent and a unnamed male who were also present. Ms. Kolinsky testified that she was not going to cover any more meetings at Foster. When asked why? Ms. Kolinsky answered: I don't know exactly. It's been like -- I don’t' even know how long, but I just remember being uncomfortable with -- I don't even remember if it was comments or notes, looks, whatever, but something like with the male teacher that was present at the meeting. But it's been so long that I really can't give any more specifics. When asked if during the meeting there was anything of a sexual nature, Ms. Kolinsky replied: I can't say. I mean, I remember I was uncomfortable, but I don't remember specifically now. The Commissioner, by the uncertainty of Ms. Kolinsky's testimony, failed to establish as fact that during the 1994-1999 school years, Mr. Merica sexually harassed a co-worker by making inappropriate comments to Ms. Kolinsky, an occupational therapist, in the presence of other colleagues and/or in the presence of a parent as alleged in the Amended Administrative Complaint. Kara Twohy was an ESE teacher at Foster from December 1996 through 2000. Ms. Twohy first met Mr. Merica when she was a teacher-intern in an EMH class at Foster during the 1995-1996 school year. Ms. Twohy testified that Mr. Merica made her "feel uncomfortable" giving as an example the following incident: He would do things like put his arms around me. One thing I can remember is he said I had an ink spot on the back of my shirt and he was attempting to rub it off. He would come -- and this is afterwards when I became a teacher -- he would come to the classroom and he brought a rose at one time, and he was constantly -- whether I was at art or I was in the classroom, he was constantly visiting the classroom. I can remember an incident where I was really ill and he came to an assembly and brought me some tissues. All in all, it just made me very uncomfortable. When she was "really ill," Mr. Merica brought her tissues and once gave her a rose. Bringing tissues to one's colleague when the colleague was "really ill" may have been either an appropriate or an inappropriate gesture. However, the act itself does not prove it was sexual harassment. According to Ms. Twohy, she initially expressed her uncomfortable feelings to other unnamed co-workers and Principal Griffin, but not to Mr. Merica. When she told Principal Griffin about her uncomfortable feelings around Mr. Merica, she testified that Principal Griffin said to her: "there's nothing really that anyone could do, but to start writing everything down. So I began writing them down." There is no evidence of record that Principal Griffin initiated an administrative investigation into the "uncomfortable incidents" related to her by the young teacher, Ms. Twohy. It is, thus, reasonable to infer, and I so infer that at the time and under the circumstances, Principal Griffin did not consider that Ms. Twohy's "uncomfortable" feelings resulting from Mr. Merica's attention to have been "sexual harassment" as that term is generally understood when placed in the above situational context. According to Ms. Twohy, after she told Mr. Merica that his presence, his attention, and his conduct made her feel uncomfortable, she recalled he apologized: There was in incident that occurred between him and my aide at the time who was Adele Morris, and basically she told him to leave me alone and he said well, I'm a big girl so I should be able to tell him myself. And he approached me the following day, I believe, after the confrontation and asked me if he made me feel uncomfortable, and I told him yes, he did. I felt very uncomfortable around him and he did apologize and say that he was sorry for making me feel uncomfortable. As a employee of the Board, Ms. Twohy knew the Board’s sexual harassment policy requirement of reporting harassment to the school's administration. She followed the policy by reporting her uncomfortable feelings and concerns to Principal Griffin. When Ms. Twohy informed Mr. Merica that his attention and conduct made her uncomfortable, he immediately discontinued all contact and apologized to her. If, as the Commissioner argued, Mr. Merica sexually harassed Ms. Twohy during the time above-stated, she followed protocol and reported the matter to her principal. There is no evidence of record that the principal of Foster initiated or requested an investigation by the School Board and a determination of whether or not Mr. Merica committed the alleged sexual harassment. If the matter was not properly investigated and determined by the Board to have been sexual harassment when it occurred, it will not be determined to be sexual harassment now by the undersigned based solely upon the unconvincing testimony of Ms. Twohy. The Commissioner failed to establish as fact, by findings 96 through 103 hereinabove, that Mr. Merica sexually harassed Ms. Twohy, a co-worker and sexually harassed Ms. Kolinsky, as alleged in the Amended Administrative Compliant. Kim Kimpton, via her video-taped testimony, was convincing and unequivocal in her response to the question, "[D]o you consider Mr. Merica's action(s) towards you to be sexual harassment? "No, not specifically." The "actions toward you" referred to what was described by the Commissioner as unwanted attention, several instances of on school-property encounters and off school-property encounters, to include buying lunch for her on one or more occasion, giving her presents, and thereafter writing a letter of apology. The Commissioner failed to prove by the evidence of record that during the 1998-1999 school year, Mr. Merica sexually harassed Ms. Kimpton, as alleged in the Amended Administrative Complaint. I find that the Commissioner failed to prove by clear and convincing evidence that Mr. Merica sexually harassed any present or past female member of Foster's administration as alleged in the Amended Administrative Complaint. SLD Student's Version of Classroom Management and Student Control Patricia Rumlin, mother of Jarmaal Rumlin, a 15-year- old SLD student witness who, at the time of the hearing, was in ninth grade, accompanied him at the hearing. When asked, Jarmaal remembered he had been a student in Mr. Merica's class for his fourth and fifth grade school years (1997-1999 school years), but he did not remember the specific school years. During the period Jarmaal was a Foster student, the Board was operating under the self-contained class policy, and Jarmaal was in Mr. Merica's self-contained class throughout the school day. When asked the open-ended question, "[W]hat about the incident when the kids were kicking a ball in the classroom?" Jarmaal gave the following, incomplete, confused, response: We was [sic] playing in the class. Takela kicked the ball to the back of the room and she went to go get it and he trapped us in the back of the room and we bust out and we ran down to the PE field. When asked "[D]id Mr. Merica ever come into any contact or anything with Takela?" Jarmaal, again confused, answered: No. He just holding in the back of the room. [sic] Holding her and she was trying to run and trying to grab her. She was going to fight back, until she got loose and ran. When asked, "[W]hy did you not mention or report this incident to other teachers, the principal [1997-1998/Payne and 1998-1999/Griffin] or the Board’s investigator?" (1999 to 2003) Jarmaal answered: "They didn't talk to me." Jarmaal's above testimony, did not corroborate the testimony of another witness who stated: "Ms. Teresa Joslyn entered a room and found Mr. Merica seated on a couch holding Jarmaal by the arm and yelling in his face and that Ms. Joslyn took him by the hand and stood him up and Principal Griffin came into the room and observed those actions," as argued by the Commissioner in its post-hearing submittal. Jarmaal admitted that "kids in his class misbehaved in class, played kickball and got up and walked around when they were not suppose to." When asked if he liked Mr. Merica, Jarmaal answered "[N]o." When asked if he learned anything in Mr. Merica's class Jarmaal answered, "I didn't learn nothing [sic]." When asked if he wanted Mr. Merica as his teacher again, Jarmaal, answered, "[N]o I don't Mr. Merica as my teacher again." Testimony from other teachers at Foster established that SLD students were, if not daily, most certainly, routinely unruly in their classes and in hallways. Jarmaal's testimony seemed rehearsed, but he was confused about the facts critical to the situation of which he testified. The witness' inability to recall and his manner of testifying raised substantial issues of the witness' credibility primarily because of his seemingly rehearsed responses and confused factual response, often mixing several parts of separate incidents. Through the testimony of Jarmaal, a SLD student, the Commissioner failed to demonstrate and prove by example that: (1) Mr. Merica engaged in inappropriate discipline, (2) he failed to engage in meaningful teaching methods, (3) he lacked professional classroom control and management of his SLD class, and (4) he was incompetent as a teacher, as alleged in the Amended Administrative Complaint. I find the SLD students' reply he did not "like" Mr. Merica an insufficient foundation from which to infer that the SLD student did not "respect" Mr. Merica as a teacher. Tawnya Clark, mother of Demetrie White, another 15- year-old SLD student, accompanied him in the hearing. Demetrie only remembered attending Foster. He did not remember the years he attended Foster (1997-1998/Principal Payne and 1998- 1999/Principal Griffin). He did not remember the grades he was in when he was attending Foster. He did not remember the class (fourth and fifth grades) he was in when Mr. Merica was his teacher. When asked "[I]n what ways Mr. Merica would get upset?" Demetrie, hesitantly, gave the following response: When like students get like up out of they seat and walk around the classroom and talk to other students, he'd get mad then and then after that he'd like -- Jonathan he would be like getting up out of his seat and talk to me, Eldrid and another friend who go to my school and he would like grab Jonathan, try to twist his wrist and then slam him on the ground and then Jonathan would be like, Get up off me. And then that's when like he would like flip. He would try to get up off the ground, Jonathan. That is when he tried to grab Mr. Merica's neck. That's it. Demetrie admitted that the kids would get up and walk around in class when they were not supposed to do so. He admitted that Jonathan tried to grab Mr. Merica's neck. He remembered a female teacher's aide but he did not remember her name or whether she was black or white. As with Jarmaal, Demetrie remembered Mr. Merica yelling at students when they were acting up. He remembered Mr. Merica yelling in the faces of students. Demetrie, like Jarmaal, said he did not like Mr. Merica, "he didn't learn nothing" and he "didn't want Mr. Merica as his teacher again." Utter confusion permeated Demetrie’s understanding of the questions asked of him and his seemingly rehearsed answers to those questions. I find the SLD student's reply that he did not "like" Mr. Merica an insufficient foundation from which to infer the SLD student did not "respect" Mr. Merica as a teacher. Viewed most favorably, the testimonies of these two very large young boys consisted of a confused misunderstanding of questions asked of them and their rehearsed answers. The testimony of these two young boys established that at times, Mr. Merica yelled at them and, on occasion, restrained them for his personal defense and/or to regain classroom control when they were acting out of control, being disobedient, playing kickball in the class room, and yelling at each other and at him. The situational circumstances of the separate incidents to which the witnesses testified occurred four or five years earlier. These two SLD students were confused, and their testimony consisted of a mixture and intermingling of critical factual portions of two separate incidents into one continuous dialogue. From their individual and collective testimony, the appropriateness or inappropriateness of Mr. Merica's conduct, in an attempt to control and manage his SLD class, cannot be determined with a reasonable degree of certainty to produce a firm belief as to the allegations in the Amended Administrative Complaint. The ambiguity created by the testimony of Jarmaal and Demetrie relating to a specific portion of their testimony related to a specific incident is decided in favor of Mr. Merica. The Commissioner proved that Mr. Merica "restrained" Takela, a student in his SLD class, by holding her arm. The Commissioner proved that Mr. Merica "restrained” Jonathan, a student in his class, by holding the wrist and arm of Jonathan. Based upon the testimony of these two young SLD students, assuming accuracy and truth, Mr. Merica’s physical restraining actions were, given the circumstances and situation at the time of physical restraints, appropriate for the defense of his person and for the protection of other students in the class. Disagreement Over IEP Content and Student Control In 1995 Ms. Teresa Joslyn began teaching at Foster Elementary as an EMH teacher. She affirmed other witnesses' testimonies that Mr. Merica was loud and argumentatively disruptive during staff and faculty meetings. Ms. Joslyn, however, gave unconvincing testimony regarding one IEP meeting she attended with Mr. Merica, but she could not provide the month or school year the IEP meeting occurred. According to Ms. Joslyn, during this IEP meeting an unnamed parent wanted unspecified items included in her unnamed child’s IEP, and Mr. Merica, the teacher, was apparently of the opinion that those items desired by this parent were not necessary. The IEP in question was not entered into evidence. When asked whose opinion determined the make up of the IEP, Ms. Joslyn replied, "[t]he case manager, who is generally the teacher [Mr. Merica in this instance]-- the person that serves the child the most.” During this particular IEP meeting, and with no evidence, or personal knowledge of the specific IEP items under discussion, Ms. Joslyn never the less concluded an unspecified position maintained by Mr. Merica was unreasonable and, by implication, unprofessional, and the position taken by the unidentified parent was reasonable. Ms. Joslyn's testimony is not credible, competent or of substantial weight to support a firm belief of the truth of the allegations sought to be established. Ms. Joslyn, without giving the year or month, remembered occasions when she would visit Mr. Merica’s classroom. According to Ms. Joslyn: On the occasion(s) when I would enter Mr. Merica's room, oftentimes I did not find him engaged in active teaching. There were times when I would walk in and he was--there was a game on the computer that he was playing or he'd be reading the newspaper or magazine at his desk. The aides -- the children would --have may or may not have worksheets on their desks and the aides seemed to be the ones that were more engaged with the children. Ms. Joslyn testified again, unconvincingly, about one incident she remembered, but she was unable to provide the month or year, when she heard a "kind of ruckus and loud voices." She remembered hearing an unnamed child's voice and Mr. Merica's voice, but she did not hear the words being spoken by either person. She supposedly entered the room and saw Mr. Merica seated on a couch holding Jarmaal (Rumlin) by the arm and Jarmaal trying to resist and get up. Continuing, she also remembered that Mr. Merica was agitated, upset, and yelling, and the child was also yelling. Ms. Joslyn specifically recalled that while she was "taking Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." According to Ms. Joslyn, both "the Principal" (Griffin) and Jarmaal were actively involved in this arm holding incident. Principal Griffin did not corroborate Ms. Joslyn's vague and non-specific memory of an undated arm holding incident. Jarmaal was not asked about this specific incident nor did he corroborate Ms. Joslyn's testimony. No other witness called by the Commissioner gave corroborating testimony in support of Ms. Joslyn’s testimony. This is critical to the credibility determination in this proceeding since allegations of inappropriate conduct in his professional relations with children are specifically alleged in the Amended Administrative Complaint and form the bases, in part, to support the allegation of professional incompetence. I find that Ms. Joslyn's vague, non-specific testimony, without corroboration of the other alleged participants to establish the context, circumstances, and time, raised substantial issues of her credibility. Her testimony and credibility was further diminished by the lack of corroborating evidence from other witnesses who were allegedly involved. The testimony contained in findings 128 and 129 hereinabove is rejected for its lack of credibility. I find that the Commissioner failed to prove, through the testimony of Ms. Joslyn, that between 1994 and 1999 Mr. Merica was not engaged in active teaching and that on unidentified occasions he was playing computer games or reading a newspaper or magazine while some unidentified staff taught his class and failed to prove that Mr. Merica engaged in inappropriate conduct by "holding Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." The Commissioner has failed to prove that Mr. Merica was incompetent, as alleged in the Amended Administrative Complaint. Debbie Maronic, physical education teacher at Foster, gave repetitive testimony affirming the fact that Mr. Merica was loud, often disruptive, and sometimes argumentative with colleagues at staff and faculty meetings. Ms. Maronic also testified of having heard "numerous stories about how Mr. Merica behaved inappropriately to other female staff members at meetings or in the hallway or other places," without recalling any one of those numerous stories. Ms. Maronic admitted that she heard her information, not from Kelly and Kim Rivenburg, the females alleged to have been recipients of inappropriate conduct, but from second-hand people. The hearsay upon hearsay summary testimony of "stories" Ms. Maronic heard regarding inappropriate conduct toward females is not competent to establish a finding of fact. The testimony of Ms. Maronic is rejected in toto by the undersigned. When the testimony of Ms. Kolinsky, Ms. Twohy, and Ms. Kimpton, that they were not sexually harassed by Mr. Merica, is juxtaposed to the hearsay upon hearsay testimony of Ms. Maronic that Mr. Merica "behaved inappropriately to other female staff members," a pattern of gossip, moving from witness to witness presented by the Commissioner, emerges for which there is no defense and very little, if any, truth to be objectively determined. The uncorroborated testimony of this witness lack credibility and is rejected. The Commissioner failed to prove, through the testimony of Ms. Maronic, that between 1994 and 1999 Mr. Merica engaged in unprofessional conduct, inappropriate conduct, and/or sexually harassed female co-workers as alleged in the Administrative Complaint. Ms. Maronic testified, again unconvincingly, concerning a throwing incident in the school cafeteria in 1999, she did not observe and therefore could not provide situational circumstances surrounding this incident. According to Ms. Maronic, as she walked by she could see Mr. Merica out in the hallway very upset and yelling very loudly at very close proximity to the unidentified students. Ms. Maronic testified that she was not "comfortable" witnessing that situation and would not leave the area until an administrator came. Nothing in her testimony identified the administrator who allegedly came so she could leave; she knew nothing, who, what, where, when or why, about the incident, though so "uncomfortable," she believed her presence was required. She neither attempted to record this "uncomfortable" incident for future reference nor did she report the matter directly to the school administration. This testimony was not internally consistent and the character of this witness' testimony, as well as the witness' demeanor, did exaggerate the nature or circumstances of the incident. The testimony of this witness lacks precise explicitness to produce a belief as to the truth of the allegations sought to be established. The Commissioner failed to establish as fact through the testimony of Ms. Maronic that, at some unspecified time in 1999, Mr. Merica's student behavior management was inappropriate or that Mr. Merica demonstrated professional incompetence as alleged in the Amended Administrative Compliant. Professional Assistance Offered by Resource Teachers Virginia King, with over 21 years of teaching experience, held the position of Hillsborough County, Area IV, administrative resource teacher (ART) since 1981. Ms. King's primary duty was to provide support and training for teachers of ESE. Her three-part support and training program consisted of: (1) teacher evaluation followed by (2) teacher assistance and concluded with (3) specific training for the teacher. Ms. King was not qualified as an expert. Based solely upon her experience, Ms. King opined that--"dealing with student behavior issues are [sic] challenging to teachers and most difficult for teachers in emotionally handicapped full time programs,” as was Mr. Merica. She further opined that "both SLD and ESE classes have behavior issues; but, in full-time ESE classes, student behavior control is most difficult for teachers regarding overall classroom control and classroom management, as compared to full-time programs where teachers of PI classes classroom control and management is least difficult." Ms. King testified that in her 21 years of teaching experience, many ESE teachers have difficulty with classroom behavior and management issues, and the training of teachers of those students is ongoing training in the Hillsborough County school system that never ceases. She is of the opinion that yelling in students' faces is unreasonable and physically restraining a student is "never" justified. Ms. King's opinion regarding physical restraint of a student is "never" justified conflicts with the statutory authority of teacher(s) to remove disrespectful, violent, uncontrollable or disruptive students from classes when appropriate, to include physical restraint, as provided in Subsection 1003.32(1)(j), Florida Statutes (2003). The Commissioner did not introduce evidence of physical restraints standards adopted by the Board of Education. The opinion of Ms. King is contrary to the statute and disregarded for all purposes in this proceeding. Proffered Evaluation and Assistance Offered to Respondent During the 1999-2000 school year, Principal Griffin requested that Ms. King visit Foster to evaluate, assist, train, and help Mr. Merica with his SLD class. According to Ms. King (without giving the year and month), she made two visits to Mr. Merica's class. She testified only about her initial visit that took place during the morning class session. When she returned for a second visit, the school administration had removed Mr. Merica from his teaching position. This one visit by Ms. King was the first step of her three-part support and training program, i.e. teacher evaluation. There was no teacher assistance and specific training offered to Mr. Merica by Ms. King. When asked to give her "general impression" of Mr. Merica's professional ability and competence to teach SLD students after just one visit, Ms. King replied: Well, in our interview I was a little surprised because I didn't really -- he has a background in SLD so he had a lot of knowledge of SLD and how to teach children with learning disabilities, addressing their different learning styles and I was actually able to observe that in class. It was a math class and I thought that he did a very nice job of addressing the student's individual needs, and that's a difficult thing to do because they're all so different and they were all at different math levels and I did see that he was able to use different teaching techniques all in one lesson. He did mention to me that -- well, I knew that there were behavior problems and I did see behavior problems and that did happen after the lesson in the transition period. The children were unruly and not really doing, you know -- you could tell that there was a lack of control was obvious. But at this particular time, the children had been really fairly well-behaved and he had mentioned to me that I should come back in the afternoon -- because this was a morning visit -- that I should come back in the afternoon so that I could see their true behavior which he said was truly out of control. Through the testimony of Ms. King, the Commissioner, clearly and convincingly, proved to the undersigned that during the 1999-2000 school year, Mr. Merica's competence as a professional teacher of children with learning disabilities ("the children had been really fairly well-behaved") was the same as and/or equal to competence as a professional teacher in the classroom of other teachers of children with learning disabilities whom the witness had observed. Conversely, the Commissioner failed to prove, clearly and convincingly, through the testimony of this witness that Mr. Merica demonstrated "incompetence" in his classroom teaching skills or that his classroom student behavior management was ineffective. The Commissioner failed to prove that Mr. Merica utilized ineffective lesson plans and ineffective classroom behavioral management plans. The Commissioner failed to prove that Mr. Merica failed to keep students academically engaged in class and that he failed to control his students and/or gain their respect as the manager of the class, as alleged in the Amended Administrative Complaint. The Commissioner failed to establish as fact, through Ms. King's testimony regarding her single classroom visit, that Foster administration, by and through Principal Griffin, offered Mr. Merica meaningful, professional, constructive help and assistance program plan that he intentionally disregarded and that he failed and refused to accept and implement the suggested offering of assistance as alleged in the Amended Administrative Complaint. The record evidence does not specify whether Ms. King's one visit occurred during the school year of 1998- 1999 or the school year of 1999-2000. This omission creates an ambiguity between the year 1999 (alleged in the complaint) and the year 2000 (the year beyond the time alleged in the complaint). The ambiguity is resolved in favor of Mr. Merica. The testimony in findings of fact 139 and 140 is incompetent and irrelevant to establish as fact allegations contained in the Amended Administrative Complaint. The Commissioner presented testimony of Sue Hindman. Ms. Hindman, with over 27 years of teaching experience and at all times material, was an ART and an ESE supervisor for Area II, in Hillsborough County. Model Classroom Observation Prior to and in Preparation for Termination by the Hillsborough County School Board Near the end of the 1999-2000 school year, Principal Griffin called Ms. Hindman and requested her to do a model classroom observation of Mr. Merica's class. A "model classroom observation" consisted of Ms. Hindman's selecting another classroom and SLD teacher (the model) in the same or similar position of the teacher (Mr. Merica) to be observed. The teacher (Mr. Merica) being observed, along with Ms. Hindman, would then visit the "model" SLD class to observe how the classroom itself was arranged and how the lessons were presented to SLD students. Based on the teacher's personal observation, and with the help and assistance of Ms. Hindman, the teacher (Mr. Merica) would then modify and model his/her classroom arrangement, classroom behavior management, SLD students' lesson planning and presentation, and other educational matters involved with teaching SLD students to that observed in the model classroom. After a reasonable period of adjustment, the ART would return to evaluate the "results of implemented changes" made after the model classroom. On October 8, 1999, after observing Mr. Merica's classroom, his teaching, his student control and classroom management, and after observation of the model SLD teacher and classroom, Ms. Hindman made unspecified suggestions for improvement to Mr. Merica. After she made her suggestions for improvement, Ms. Hindman returned to observe whether her unspecified, suggested improvements had been accepted and put into effect by Mr. Merica, and, if so, to document what results were observed. Ms. Hindman documented improvements she noted in Mr. Merica's class on her return visit as follows: The new behavior rules were typed clearly and colorfully. The post-it-notes [tickets] were being used to reward positive [student] behavior. Instructions was hampered by inappropriate student behaviors. On October 18, 1999, Ms. Hindman made a second follow-up visit to observe the progress of her earlier unspecified suggestions. During this second return visit, Ms. Hindman made additional unspecified suggestions for improvement. Ms. Hindman returned to observe whether her second suggested improvement had been put into place and if so, the effect and impact of her second suggestions. Ms. Hindman documented improvements observed in Mr. Merica's classroom management and student control and professional teaching competency on her second return visit as follows: Student behavior was better. Students responded to the LLP redirections. They also responded to the additional tickets given for good behavior. More positive comments were made when students were on task. Student behavior will improve as teacher consistency improves. The more aggressive students are getting, all the attention (and tickets) while the good students tend to be neglected. Curriculum must now become a priority. Your students really settle down while working on assignments and seem eager to accomplish tasks. Capitalize on that momentum! On October 26, 1999, Ms. Hindman made a third return visit to observe Mr. Merica's implementation of her earlier suggestions. During this visit, Ms. Hindman made additional suggestions for improvement and documented improvements she observed in Mr. Merica's classroom teaching and classroom management and student control as follows: Reading groups began today using a sequential program. Math groups began learning higher skills plus using manipulative. Individual work folders were used for seatwork. Through the testimony and corroborating documentation of Ms. Hindman, the Commissioner proved, clearly and convincingly, that as late as October 26, 1999, Mr. Merica accepted and implemented constructive criticism and assistance from those administrators whose positions required giving such constructive criticism and assistance. The Commissioner failed to prove, through the testimony of Ms. Hindman, as it did through the testimony of Ms. King, allegations that Mr. Merica intentionally disregarded and failed and refused to accept and implement the suggested offering of assistance. The undisputed testimony of Ms. Hindman clearly demonstrated that when given constructive professional assistance, a reasonable opportunity to implement the constructive assistance, and an objective evaluation thereafter, Mr. Merica was amenable and put into practice professional assistance and suggestions that proved to be helpful. He responded positively by implementing suggestions made by Ms. Hindman and to those made by Ms. King. During each return visit by Ms. Hindman, Mr. Merica demonstrated continued improvement in his professional ability as a SLD teacher. I find that through the testimony and resulting documentation of three separate occasions of Ms. Hindman rendering professional help and assistance and Mr. Merica's positive response thereto established as fact that the competence of Mr. Merica was not diminished so as to impair his effectiveness as a teacher in the Hillsborough County school system as of October 26, 1999.5 Petitioner's Presence Outside His Classroom, His Teaching, and Classroom Management Mr. Merica presented the undisputed testimony of Mary Evans-Bauman, a DEEDS Attendant who worked with over 15 teachers during her employment at Foster. From January through July of the 1997-1998 school year, Ms. Evans-Bauman was assigned and did work with Mr. Merica in his self-contained PI class. She did not work with Mr. Merica during any period he was teaching a SLD class. According to Ms. Evans-Bauman, Mr. Merica did not leave his classroom more often than any of the other 15 teachers with whom she worked during her employment at Foster. Based upon her daily observations, Ms. Evans-Bauman opined that Mr. Merica's PI students respected him, and she did not observe any problems with his classroom management. She denied observing Mr. Merica playing video games or reading newspapers when he should have been teaching. She testified that she never observed Mr. Merica exhibiting out-of-control behavior or imposing inappropriate discipline on students in his PI class. She acknowledged that PI students, because of their restricted physical mobility, were less likely to become disruptive and unruly because of their physical limitations. Mr. Merica presented the testimony of Carolyn Mobley. Ms. Mobley worked 21 years at Foster as a teacher's aide and as a DEES attendant. During her extended tenure at Foster, she worked with approximately ten different teachers, including Mr. Merica. Ms. Mobley began working with Mr. Merica during the 1998-1999 school year, the first year he taught a PI class with Ms. Payne as principal. She continued working with Mr. Merica when Principal Griffin moved him to an SLD class during the 1999-2000 school year. According to Ms. Mobley, she worked with Mr. Merica continuously, five days per week for seven and one- half hours per day, for two consecutive years. Based upon her continuous presence in Mr. Merica's classrooms, she had abundant opportunities to observe Mr. Merica's interactions with students in both his PI and SLD classes; she answered the question of how she would characterize his relationship with his students as follows: I would say he didn't have no problems that I would consider problems because I have kids and I wouldn't want nobody to mistreat mine, and I'm a fair person. On the mistreating kids in any way question, Ms. Mobley answered: No. He always seemed to be generosity [sic]. He would always treat them with respect and do the things most teachers wouldn't do, I would say. On what kind of things he would do that other teacher wouldn't do, Ms. Mobley answered: Well, you know, sometimes if they didn't have their lunch and they wanted something, then he would treat them to it, you know. On Fridays when they had free time, he would give it to them out of the cafeteria. Answering the question whether she observed Mr. Merica being off task--off his teaching duties during the time that you were the aide in the PI class, i.e. reading a newspaper during the time when he should have been teaching or playing computer games during the time he should have been teaching, Ms. Mobley answered: "No." Answering the question whether Mr. Merica would leave the classroom and leave the aides to take care of the kids, Mr. Mobley answered: No, because if he left the classroom, he would say, "I'm going to the office," run some papers or basically we knew where each other was. We always knew. Answering the questions whether Mr. Merica leaving the class occurred more often than other teachers, acting in an unprofessional way, being belligerent, and being confrontational with students, Ms. Mobley answered each question "No." Answering the question whether there were more behavioral problems in the SLD class than in the PI class, Ms. Mobley answered: SLD kids do have a behavior, [sic] where PI kind is not as verbal word-wise--. Answering the compound question of Mr. Merica's interactions with students in the SLD class, acting in an unprofessional way to any of the kids, being belligerent with the children, being hostile with the children, and being confrontational with any of the children, Ms. Mobley answered: "No" to each question within the compound question. Answering the compound questions of whether Mr. Merica raised his voice toward the students; talked loud when he was close to a student, screamed, or yelled, Ms Mobley answered: I wouldn't say raise his voice, but he talked loud, like scream or yell- No. Well he always talked loud, so to me it was always a loud voice. He don't have a soft voice. He had a loud voice. Through the undisputed testimony of Ms. Mobley, Mr. Merica demonstrated that from the school year beginning in 1998 and ending in 1999 his teaching and student behavior management, as observed by Ms. Mobley, was not ineffective; that he did not frequently leave his own class with his aides; that he did not walk around campus, socialize, and/or monitor other teachers and their students; and, when in class, that he did not play video games on his computer, read newspapers, or review architectural designs, as alleged in the Administrative Complaint. Human Resources Manager's Testimony Based upon her Summary Reports of Letters and Reports Received From Staff The Commissioner presented, as a summary witness, the testimony of Janice Velez.6 Ms. Velez had over 30 years in the school system during which time she has occupied the positions of classroom teacher, teacher trainer, school-based administrator, and director of personnel services. For four years (1999-2003), she occupied the position of General Manager of Human Resources (HR) for the School Board. The Commissioner did not qualify Ms. Velez as an expert. As director of personnel services for the School Board, Ms. Velez receives information, via written reports from Foster administration, from individual teachers, from medical personnel, and from other sources regarding school personnel. Ms. Velez rarely, if ever, has personal knowledge of instructional personnel activities at the many schools in the county, before such activities are reported to her in written form through the chain of administrative protocol. It is noted that her reports in evidence are not sworn to or notarized by the person(s) with personal knowledge nor are they "tested" for accuracy by independent investigation by Ms. Velez. She accepts each report as factually accurate. It was against this background and based upon many such unspecified reports that Ms. Velez summarized and posted a letter to Mr. Merica reflecting her summarized version of those hearsay reports that the Commissioner asked Ms. Velez to "explain" the first sentence of her July 1, 1994, letter to Mr. Merica. The sentence counsel for the Commissioner asked for as an explanation read: "Some information has come to my attention that you and I need to discuss." To the question "explain what did you mean by that sentence," Ms. Velez answered with the following editorial: What he acknowledged, and I don't have the report in front of me, but I remember the student was a difficult child and he had -- what upset me and the reason I asked him about the ACT [Aggression Control Techniques] certified was that in the course of taking care of this child, had dragged her across the carpet or something and then other adults were present that assisted him in the process. That's when I asked him if had had been trained and he said no, he had never been scheduled. There is no evidence that tends to corroborate the hearsay evidence contained in Ms. Velez's July 1, 1994, letter to Mr. Merica. Ms. Velez did not possess personal knowledge of the information reflected in her letter. Consequently, her testimony regarding Mr. Merica's alleged response merely amounts to hearsay upon hearsay upon hearsay. There is no record evidence identifying the context and circumstances of "[w]hat he acknowledged” as testified to by Ms. Velez. The intended inference that Mr. Merica acknowledged-—“that in the course of taking care of this child, he dragged her across the carpet or something," was not corroborated by any "other adult present that assisted him." Mr. Merica's denial "that he dragged her across the carpet or something," even if unbelievable, does not prove the Commissioner's accusation contained in the Amended Administrative Complaint. Ms. Velez’s recollection explanation is an assumption and not fact (that he dragged a child and other students and adults were present). Based upon her assumption, Ms. Velez concluded that Mr. Merica acknowledged her assumption as fact. The assumption and conclusion of “acknowledgement” by Mr. Merica of that assumption is incompetent, not credible and insufficient to establish the incident as fact or to establish that Mr. Merica admitted and acknowledged her assumptions and her conclusions “that in the course of taking care of this child, he dragged her [a child] across the carpet or something and then other adults were present that assisted him in the process." Ms. Velez testified that she met with Mr. Merica on four separate occasions, the first meeting occurred on or about the first week in July 1994, during the period Ms. Payne was principal. At the time of her first meeting with Mr. Merica in July of 1994, Ms. Velez was not general manager of HR for the Board. The evidence of record does not establish Ms. Velez’s position in the school system in July 1994, other than she was a teacher assigned to personnel services. Continuing, Ms. Velez testified that during the first week in July 1994, she was “initially concerned” because Mr. Merica was not ACT certified. The Board's policy required each teacher to be ACT certified before engaging in physical restraint of students. In 1993 to 1994, Ms. Velez was a teacher assigned to personnel services, and the record evidence does not provide any authority for her to “meet with Mr. Merica” as a part of her duties in personnel services. There is no evidence of record that Principal Payne, who was principal and who did not corroborate this story, requested Ms. Velez’s involvement with her teachers, including Mr. Merica. Assuming Ms. Velez had authority to read Mr. Merica’s personnel file, why in 1994 did she only recall his restraint certification status? Principal Payne testified that she, and she alone, identified Mr. Merica's needs for improvement and provided him with useful suggestions that he incorporated and showed improvement. Principal Payne buttressed her testimony by giving Mr. Merica all "satisfactory" annual performance evaluations. Ms. Velez's testimony regarding any facet of Mr. Merica professional competence in the school year of 1994 to the contrary is not accepted by the undersigned as credible evidence. The Commissioner, through the testimonies of 21 witnesses, failed to produce clear and convincing evidence that Mr. Merica exhibited any indicia of professional incompetence in July of 1994. Through the testimony of Ms. Velez the Commissioner again affirmed other witnesses' testimony that Mr. Merica was not ACT certified at certain periods. However, the undisputed evidence demonstrated that Mr. Merica’s last year of ACT certification was the year of 1995 and not, as Ms. Velez mistakenly assumed in her testimony, 1994. The Commissioner failed in its attempt to establish 1994 as the beginning year of Mr. Merica's alleged incompetence through the above testimony by Ms. Velez. In 1999, Ms. Velez was appointed to the HR position. Six years before, in 1993, she was in personnel services. It was during the 1993-1994 period that the Commissioner sought through her testimony to prove Mr. Merica knowingly admitted and acknowledged that in July 1994 "he used excessive force or restrained a [unidentified] child inappropriately as reported by a parent [unidentified] to the police department and the school internal investigators." The bare hearsay "admission against interest" hearsay statements of unproven acts from unidentified hearsay sources is not corroborated and is rejected by the undersigned. Ms. Velez gave her explanation of meeting with Mr. Merica for a second time on August 12, 1999, which she later reduced to a letter dated September 24, 1999. In that letter Ms. Velez recited the purpose of the August 12, 1999, meeting-- "for discussion of an investigative report into coworker's allegation that during the summer he made threatening remarks against the school administration and comments made about Principal Griffin, i.e. "She dyed her hair blond to get her job, "I got rid of one principal; I'll get rid of her too," and "If she wants to go head-to-head, then I'll win." In her 1999 letter, Ms. Velez stated that Mr. Merica admitted making the alleged statements, explaining the statements were "hearsay" and because, as he viewed the situation, "others wanted to bring [him] down to their own misery levels." Her third meeting with Mr. Merica occurred in September of 1999. This meeting, she explained, was convened "for discussion of a letter of reprimand written by Principal Payne." (In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE coworker.) Later during that school year when she evaluated his overall professional teaching performance, Principal Payne gave Mr. Merica a "satisfactory" rating in every area, without comments, for the 1998-1999 school year. This meeting and the letter of reprimand concerned Mr. Merica's professional conduct on two separate incidents. Those two incidents were a faculty meeting disruption and a school improvement team and parent meeting. No testimony was elicited or given by Ms. Velez regarding the situational circumstances attendant to those two incidents. When asked her opinion of Mr. Merica's "attitude" toward her during this third meeting, Ms. Velez replied: I would say it ranged in the typical realm of employees. When they meet with me sometimes they're angry. He was in denial that the letter was warranted. He said he didn't perceive himself to have lost his temperament. He did not recall -- in one of the two incidents, someone said he banged his hand or fist on the table. I don't recall doing that. There were several letters that the principal also forwarded to me from colleagues and they said that he was out of control. He said, I'm not out of control. I have a loud voice. And basically he was in denial that the incident was as significant as the principal had alleged in her letter or reprimand. The fourth meeting between Ms. Velez and Mr. Merica occurred on October 1, 1999. Also present at the meeting were Carl Crosson, CTA representative, and Dr. David Binnie, assistant superintendent for HR. The purpose of this fourth meeting was to discuss a specific classroom incident that had occurred on or about September 23, 1999, where it was alleged that Mr. Merica retained five students in the classroom due to their misbehavior while the other students went to lunch with the paraprofessional. In her 1999 letter, in the first paragraph, Ms. Velez wrote her version of an incident she did not personally observe: During the timeout period, you asked these students to sit quietly in their desks, while you placed your own lunch in the microwave. When they began to dance about the room and to toss and roll a kickball among themselves, you summoned several times for assistance on the intercom. During this period, you stated you remained at your desk, although once you tried to kick the ball away and once you moved your elbows in an effort to keep a student from retrieving the ball that had rolled behind your chair. Another student subsequently hit you on the head with a folder, and you chased him briefly until he, at your direction put the folder down. You summoned additional times for assistance. Continuing with the second paragraph, Ms. Velez stated: As a result of your poor performance this year, and its negative impact on the quality and continuity of instruction for students assigned to you, your principal recommended that you be either administratively transferred or dismissed as a teacher. Actions on these recommendations was placed in abeyance since you asked for, and Dr. Binnie granted, additional time and assistance from school and district personnel for you to develop and implement a plan to appropriately regain control of and develop respect from your students. He provided you with three days of paid duty time and a month of implementation to accomplish this end. In her last paragraph, Ms. Velez stated: Dr. Binnie will review the effectiveness of your plan, your professional conduct at work, and your future employment status during a meeting scheduled for Monday, November 1, 1999, at 3:45 pm in the Human Resources conference room, 2nd floor of the School Administration Center, 901 East Kennedy Boulevard. Ms. Brenda Griffin, your principal, has also been invited to attend. Ms. Velez testified that the November 1, 1999, meeting never occurred, "due to an error where [sic] his address was not in the system correctly, he was not in attendance at the meeting. So, we rescheduled it for November 3rd." Considering Mr. Merica was an employee with 13 years of service and had met four times with administration within a six-month period (July through October 1999), the loss of his address--"his address was not in the system correctly"--by the Board becomes suspect. Continuing, Ms. Velez testified that: [O]n November 2nd her office received a call from Foster Elementary School regarding an incident in the hallway that teacher could hear Mr. Merica scream at a child and described that he was in their face and we removed Mr. Merica from teaching at that time for a continuing pattern of being unable to control his students and control his temperament, creating a dangerous situation for children. (emphasis added) No witness presented by the Commissioner testified to having observed the incident above described by Ms. Velez. When subjected to cross-examination, Ms. Velez reluctantly admitted that her intentional use of the term “creating a dangerous situation for children" was not an accurate statement. During all times (1999-2000) pertinent to matters herein above, the goal of Principal Griffin, via Ms. Velez and through the Board, was to terminate Mr. Merica's employment with the Board. Thus, the HR manager's intentional selection and use of the statutory phrase, “creating a dangerous situation for children," that she knew at the time to be an inaccurate statement, revealed her intent and thus seriously undermined her credibility. The witness' credibility and testimony were further diminished by the fact that at the time she knowingly made her "inaccurate statement," she was an active participant in, and thus fully aware of, the Board's engagement in the procedural protocol process of terminating Mr. Merica's contractual employment. Ms. Velez's knowing misrepresentation, that Mr. Merica's continuing pattern of being unable to control his students and control his temperament was "creating a dangerous situation for children," was biased and inaccurate. Ms. Velez's unconvincing explanation of her understanding of the factual basis for the School Board's removal of Mr. Merica from teaching at Foster was vague: [B]ased on a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children. When asked to clarify her inaccurate misrepresentation of whether or not Mr. Merica's conduct resulted in an unacceptable environment or created a dangerous situation for children, Ms. Velez stated: "[D]uring the five years Mr. Merica taught the PI student class [from 1992-1993 to 1998-1999], Mr. Merica’s conduct and teaching did not create an environment that was dangerous to the students in those classes." Ms. Velez further testified that "[T]the [Hillsborough County School] Board determined that it was during the 1999-20007 school year a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children, that Mr. Merica was creating an environment that was dangerous to the students in his classes." Ms. Velez did not identify incidents that occurred August 12, 1999, through December 31, 1999, separate and apart from incidents that occurred between January 1, through May 24, 2000; thus, there is no basis to determine whether alleged incidents occurred in 1999 or 2000. Her testimony included "essential and substantial facts in support of the allegation" having occurred in a timeframe (1999- 2000) not embraced in the 1994-1999 period (ending December 31, 1999) alleged in the Statement of Charges of the Amended Administrative Complaint. "[T]the allegata and probata must correspond and agree." This ambiguity is resolved in favor of Mr. Merica. On that basis the testimony of Ms. Velez in findings 183 through 186, hereinabove is rejected. The Commissioner did not prove, by clear and convincing evidence, that during the period between 1994 and 1999 Mr. Merica "created a pattern of similar incidents thus creating an environment that was dangerous to the students in his classes." Conversely, through the testimony of Ms. Velez, the Commissioner proved, clearly and convincingly, that "during the 1992-1993 through the 1998-1999," including the 1994 through 1999 period alleged in the complaint, Mr. Merica did not engage in a pattern of similar incidents that created a dangerous situation for children." Regarding the school year when allegedly Mr. Merica initially became or his teaching methods demonstrated incompetence, Ms. Velez demonstrated a lack of knowledge and lack of expertise by her following qualified answer: It was my feeling--my personal and professional feeling when I reviewed the file--that he had indicators of incompetence for quite some time, especially in his personal conduct. I am not an expert in curriculum. It's been a long time since I taught in the classroom. [emphasis added] But Mr. Merica's statement to me was he's the best teacher that was at Foster Elementary, and I had an opportunity to look at his lesson plans one afternoon when I went to meet with Ms. Griffin and although I haven't written them in years, there were no lesson plans. They were subjects. Math, math, math. Nothing to distinguish between the levels of his children. When I reviewed the record at Foster, his conduct that created an uncomfortable working environment for employees had been there a long time. The former principal, Ms. Payne, had dealt with it from time to time. It's my professional opinion that she put him in physically impaired so he had less opportunity to be inappropriate with children, and she began then to deal with his personal conduct issues. So to answer your question, I believe -- I don't know that -- I don't know when it began, but I don't think it surfaced his last assignment at Foster, but rather sometime prior to that. [emphasis added] Ms. Velez was unable to identify the school year Mr. Merica became, as she characterized, "incompetent in his personal conduct." Ms. Velez's personal feeling of incompetence is an inadequate standard by which to measure professional competence, to include one’s personal conduct. Ms. Velez did not know when, if at all, Mr. Merica's alleged professional incompetence, to include his alleged personal conduct, began. The evidence of record established that the Board, as of January 13, 2000, had concluded its investigation and made a final determination that Mr. Merica was incompetent. Therefore, the Commissioner failed to prove, by clear and convincing evidence, through the summary testimony of Ms. Velez that Mr. Merica was or to began to become incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 19997 period as alleged in the Amended Administrative Complaint. Violation of a penal statute or rule is not found on loose interpretations of the Human Resource Director with 31 total years of education experience and a Master's Degree in Education Administration, or based on problematic evidence. Evidence more objective and substantial of critical matters in issue should be as substantial as the consequences. Clear and convincing evidence is not present in this record nor established by testimony presented by this witness that Mr. Merica was incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 1999 period as alleged in the Amended Administrative Complaint. Ms. Velez testified that teachers hired by contract (as was Mr. Merica), a veteran teacher, or a tenured teacher are required to be evaluated once annually by their principal, and the purpose of the principal's annual evaluation is for performance improvement. The testimony and documents prepared by Ms. Velez regarding a report from an unidentified mother about her unidentified child is unconfirmed, uncorroborated, incompetent, and thus insufficient to establish any purported facts of actual occurrence. Following protocol and to effectuate his contractual termination with the Board, on November 18, 1999, Ms. Velez submitted four of her letters, dated July 1, September 14 and 24, and October 20, 1999, to James A. Edgar, M.D., P.A., as the basis for her referral of Mr. Merica to Dr. Edgar for a psychiatric evaluation that was conducted by Dr. Edgar on November 18 and 23, 1999. Accepting as accurate and true the content of Ms. Velez's four letters and using those letters as the foundation of his examination, Dr. Edgar evaluated Mr. Merica. At the conclusion of his examination, Dr. Edgar opined that Mr. Merica did not have a diagnosable psychiatric disorder, either Axis I or Axis II, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). According to Dr. Edgar, "None of the problems, as reflected in Ms. Velez's summary taken from non-notarized reports from unnamed third parties, makes him in and of themselves incapable of functioning as a teacher." He then goes on to qualify his opinion with a "[H]owever, taken together they 'could' make him very difficult to work with as part of a team effort.” Dr. Edgar's evaluation resulted in a qualified conclusion that Mr. Merica is aware of his actions but minimizes or denies the effect of those actions on others and thus rationalizes his verbal aggressive behavior as his "constitutional right" to express his opinion. From that position, Dr. Edgar reaches what appears to be the desired conclusion that: "Mr. Merica's current behavior does not appear to be an escalation of previous behavior just more of the same. I can not say whether he might become more aggressive or violent but I do believe his behavior will not improve." The attempt to lay a factual foundation that Mr. Merica's alleged incompetence was present in 1994 through the conclusiory testimony of Dr. Edgar failed for want of competence. The one line in Dr. Edgar's 1999 opinion that Mr. Merica's "behavior does not appear to be an escalation of previous behavior just more of the same," is insufficient in weight and substance to establish as fact and/or establish the basis from which to infer, and I do not infer, that in 1994, Mr. Merica demonstrated an "aggressive behavior," which demonstrated emotional "incompetence," and that behavior continued through 1999 as alleged in the Amended Administrative Complaint. Respondent's Response to Allegations Mr. Merica presented the testimony of Janice Wilson who worked as a DEES attendant at Foster from 1992 through 1998. Ms. Wilson was Mr. Merica's DEES attendant during the 1997-1998 school year and worked all day, five days a week, with Mr. Merica in his classroom when he taught PI students. She was not his DEES attendant when Mr. Merica taught SLD students. For the six-year period, 1992-1998, Ms. Wilson was in Mr. Merica’s classroom daily. She had occasion to observe his teaching as she worked with Mr. Merica. Based on her six-year association, Ms. Wilson testified as follows: When asked how would she characterize his rapport with his students, she answered: "wonderful, wonderful." When asked did she have problems or concerns working with Mr. Merica, she answered: "none, none, whatsoever." When asked had she ever observed Mr. Merica mistreating, in any way, students, she answered: "No." When asked did she ever see him getting in the faces of any of his students, she answered: "None whatsoever." When asked if she had observed Mr. Merica screaming at his students, she answered: "No." When asked if she would have any problems working with Mr. Merica in the future, she answered: "I would work with him any day." Regarding Mr. Merica leaving his classroom, Ms. Wilson testified that: When Mr. Merica would leave the classroom, he has been called from the front office or any other classroom for computer. If the computer goes down, he was the man that they will find to fix the problem with the computer. That's the only time he would leave the classroom, when they request they need it. To the question other than his lunch time and his planning period, did you know of Mr. Merica just to get up from the classroom and go walk around, she answered: "Not at all." When asked did Mr. Merica socialize, she answer: "Not at all." When asked did she ever know of Mr. Merica to be unprofessional, belligerent, hostile or confrontational, she answered: "No." When asked did she ever observe Mr. Merica trying to subvert the administration, she answered: "No." When asked how his students reacted to Mr. Merica, Ms. Wilson replied: Oh, they were glad to see him every day. I mean, a lot of times they would be hungry before lunch, and Mr. Merica would go to Sam's that night before and have snacks in the classroom to make sure they have snacks to eat before they went to lunch. I mean, he was a wonderful teacher. Nobody could never ask of --and I mean, he was outnumbered as male teachers at the school. There was only two, you know, and I think he was a wonderful teacher. Presence Outside His Classroom When asked if she personally received calls for Mr. Merica to assist someone with their computers, Ms. Wilson answered: Yes. It comes over the intercom and he always asked, will you be okay for five or ten minutes? Let me see what's wrong with the computer and that's the only time he would leave the classroom. When asked if she knew "specifically" where Mr. Merica went on computer calls, Ms. Wilson answered: The school has changed a lot with teachers. A lot of the teachers has left. A lot of times he would go to like an autistic class which is down the hallway from us. He would go to the room next door to us to help with the computer. Now, with names I'm not familiar with the teachers because like I said, the school has changed a lot since I've been there and maybe those teachers are not even working there. He used to help Rita Airwood (ph.) a lot with the computer because she wasn't--she didn't know where the power button was. Most of the teachers there didn't know where the power was. A lot of us would, after school, when all the kids were gone, we would have him to teach how to work the computer and be on task when the next day come. So, therefore, a lot of the teachers would come to our classroom to let Neil show them were the computer--what screen you start on and all before the next day because a lot of times we would get worksheets. We didn't have workbooks. A lot of times we would get worksheets off the computer. So when I say names, it's a whole bunch of names I would have to go through. When asked, "[h]ow do you personally know, from viewing him going to that room--witness him go to where he said he was going?" Ms. Wilson answered: Because we have windows. The aisles run from east to west. We have -- and I'm looking out the door to make sure he gets to that classroom. A lot of times when he gets to that classroom, he'll either do this here, a thumbs up, and he's on his way back. According to Ms. Wilson, she always knew where Mr. Merica went when he left his class because he would tell her before leaving; i.e. "They want me in the front office." "I need to be here." He would not just walk out of the class. Though she did not follow him out the classroom, she testified: A lot of times I would be doing bathroom and he would say, "Hey, I'll be right back." He may go and get a cup of tea and he's right back there helping me in the bathroom, because normally I think we had -- at the time I worked with him, we maybe four to five wheelchairs, and a lot of times he would give me help with the boys, you know, and then I would do the young ladies. I would take the girls first and he would stand right outside the bathroom and wait with them if I said I needed him, he'll come inside and help me. Through the undisputed testimony of Ms. Wilson, Mr. Merica established those purposes for his frequent departures from his classroom; to assist other teachers with computer problems in their classrooms. Whether or not one agrees with the stated purposes Mr. Merica gave for being out of his classroom, that fact does not affirm the Commissioner’s allegation of unprofessional conduct by his frequent presence outside his classroom. When asked if he was called upon by the Administration to provide technical computer assistance to the teachers Mr. Merica replied: Very often. I would not fix a computer unless it was on my planning time, unless it was instructed by the administration office, by Ms. Pils or Mr. Drennan--Ms. Payne, I'm sorry--or Ms. Drennan--that they needed me and it was a real emergency and I would also make sure with my class that there was the kind of instruction that wasn't going to hurt me to be pulled out for a few minutes. Regarding ACT training and physical restraint of students, Mr. Merica admitted that he received ACT training and was certified only for the 1995 school year. He was aware of the policy requirement of annual ACT re-certification, but he elected not to be re-certified. Mr. Merica admitted physically restraining students on approximately three to five separate occasions during the period of 1995 to 1999. When questioned as to his understanding of physically restraining students when his ACT certification had expired, Mr. Merica responded: That is not my understanding. I think another ESE teacher touched upon it that if a person is about to harm themselves or others or harm you, where you really feel that they're going to physically harm themselves, another student or yourself, then you can restrain them because what you are trying to do is keep a dangerous situation from becoming more dangerous. Mr. Merica denied having classroom behavior problems during his tenure as a SLD resource teacher (1987-1988 through 1992-1993 school years) as well as during his tenure as a PI resource teacher. Mr. Merica admitted engaging in disruptive conduct when attending faculty and staff meetings. He characterized his disruptive actions as "tapping a pencil on the table or tapping his fingers on the table," but denied "pounding his shoe on the table." He matter-of-factly acknowledged making arguably argumentative comments when he agreed or disagreed with some things presented by the speaker with callous disregard that the speaker was speaking. I find that such callous disregard of rendering reasonable respect to the person speaking and those of his colleagues in attendance under the circumstances demonstrated unprofessional conduct by Mr. Merica. I further find Mr. Merica's ". . . constitutional right" justification for unprofessional conduct unconvincing. Mr. Merica acknowledged he has a loud voice and a strong personality, and he is sometimes loud, but not "always" loud as testified by co-workers. Mr. Merica testified that he got along and related very well to the PI and the SLD students in his classes, and he believed they related very well to him and none of his children came to him personally with a complaint. According to Mr. Merica, during his tenure at Foster, he never received a written document from a parent that said "we have a complaint." Mr. Merica opined that other than academic concerns-- normal academic concerns--when he asked for a conference with parents of his children, a few parents would come on conference nights because most of the parents of his kids knew him because he had been there for a while. Regarding Principal Griffin's decision to move him from his PI resource class to a regular SLD class, Mr. Merica recalled that before summer school of the 1998-1999 school year, Principal Griffin and he discussed the matter. His recollection of their discussion follows: She basically said --she looked at my record and said, "As far as discipline goes -- I know we have some other issues, but as far as discipline goes, you look like somebody who could handle that class because it's very difficult class with mostly boys and we'd like to see a man in there,"--and to be perfectly honest, I told her I just went through a divorce. I needed stability. I would prefer to stay in PI or I would like a transfer, and unfortunately at that time, the transfer period was over or they had a freeze. It was one or the other. I think they might have had budget problems and had a freeze at the time. It was one of the two reasons.--It's just that I needed that stability and I hadn't done -- I had done resource before, and I've done PI, which I felt really comfortable in, but hadn't done a full time SLD unit. Even though I was qualified to do it, I just didn't really feel comfortable going into another area after the domestic problems I was having at home. I went through a divorce, which was not an easy thing, during that summer. (emphasis supplied) Mr. Merica's recall of Principal Griffin's comment, "[w]e'd like to see a man in there," was corroborated by Ms. Lipari testimony that during the 1997-1998 school year she was moved down to teach kindergarten and first grade level PI students to provide "mothering and maternal type activities," and Mr. Merica was moved to third/fourth grade to teach older, larger male students. Mr. Merica gave the following reason for resigning as CTA representative in the spring of school year 1998-1999: I resigned because there was undue pressure from the principal [Principal Griffin] and they actually were putting some pressure on my child that was going to that school. Concerning his role as a resource teacher, Mr. Merica stated: As a resource teacher, I had to implement the IEP that was generated by either me or a teacher before me, describing the amount of pullout time, and pullout means that they were in a "regular education class" and they were pulled out for special services. What special services I generally gave them was either math or reading, but it could be social studies or science. Those were rare occasions. Most of them were math or reading. You pull them out for the amounted time specified by the IEP at the level that the IEP indicates, and when that period of time during the day is over, you send them back or you walk them back. In Hillsborough County they had some problems at that time with kids running off campus, so they recommended that we pick up our students and take them back to class. Administrative Leave and Observation of Model Class According to Mr. Merica, on or about August 12, 1999, he was assigned to the SLD class and his last day in that class was November 2, 1999, a total of 83 days before he was placed on administrative leave for five work days plus the weekend. Mr. Merica's assignment by Foster administration to Lake Magdalene was for him to observe a class at Lake Magdalene similar to his SLD class at Foster. After he sat in the Lake Magdalene class for approximately two hours, he spent the next few days sitting next to the principal's office trying to compile materials that would work for his SLD class. Mr. Merica concluded that the Lake Magdalene (SLD) class was not similar (as a model) to his Foster (SLD) class based on following reasons: I was working in an inner city school, this was a very rich, affluent area with totally different set of behavior problems. The makeup of the class was totally different. There were more girls. They were more [sic] white. It was just a totally different makeup. They were younger. And I sat in the classroom for about two hours and then I spent the next few days sitting next to the principal's office supposedly trying to compile materials that would work for my class. Lock Down Drill and Student Running Out of Classroom Responding to questions raised about the "lockdown drill" situation when students were observed running from the classroom onto the PE field, Mr. Merica testified he was given a walkie-talkie because the school intercom system was down. He did not receive notification of the lockdown drill via the walkie-talkie, and so he was not made aware of the scheduled lockdown drill. The evidence is undisputed that students that were seen by his co-workers running "about" the facility during the lockdown drill were not under the supervision of Mr. Merica at that time. The evidence demonstrated those kids were in their scheduled PE class under the supervision of the PE teacher, who put them in "time-outs" and sent them to Mr. Merica for their "time-outs" periods. Undisputed evidence demonstrated and it is found as fact that during this "time-out" period that the incident of students kicking the ball and playing in the classroom and being generally unruly and disobedient that Mr. Merica had justifiable cause to defend himself when a student put his/her hands around his neck and attempted to choke him. His testimony regarding the conduct of students in his class was corroborated, in part, by the testimony of two students, Jarmaal Rumlin and Demetrie White. Mr. Merica denied yelling at either Principal Payne or Principal Griffin. In defense of his voice volume, he characterized his discussions as "forceful," "assertive," and sometimes with a "loud voice." He described pointing of his finger as [u]nder normal conversation when some people use their hands, they might consider that pointing, were I was just, you know, just using my normal gestures of speaking, as far as I was concerned, and if I was pointing, it was only --again, it was not to be pointing at anybody. It might be, that's point number 1; that's point number 2; that's point number 3. Continuing, Mr. Merica said he never lost his temper at school with either principal, was never "out of control" with any students under his supervision, and never injured a student under his supervision. Mr. Merica's explanations for his finger-pointing and verbal barrages during conversations with authority figures evidenced a defensive attitude that did not lend itself to the appearance of a professional team player. Principal Payne did not testify that Mr. Merica pointed his finger in her face during their many meetings over the years. Principal Griffin's testimony of "pointing his finger in her face by Mr. Merica" was not accompanied by specific circumstances and situational context of the incidents. Accordingly, the appropriateness of such conduct, without evidence of each party's participation in the conversation and the specific circumstances and situational context at the time of occurrence, was not shown by the evidence of record to be, clearly and convincingly, inappropriate. Answering allegations of making derogatory or disrespectful remarks about Principal Payne or Principal Griffin, Mr. Merica replied: That's the eye of the beholder, but as far as I was concerned, I was just trying to make them a better person and there were some things that they were criticizing me about. I criticize people for things that I feel they have weaknesses too. So, you know, it's the eye of the beholder. Responding to Offered Assistance and Suggestions When asked if he had received assistance to help improve his classroom management techniques with regard to his regular SLD class, Mr. Merica replied: Yes. I always took suggestions and implemented every suggestion. Some things did work and some things did not work. You know, sometimes certain personalities -- certain things won't work and certain things will, but I certainly implemented every plan. Now, hey, I can even say this: some plans that I wasn't that good at and probably somebody else could have made it work -- maybe. But I know that some things I did that they implemented -- some things worked and some things didn't and I can even go further without trying to be editorializing that we learn from others. Some of the other teachers have suggestions --not just the ones from administration. There were some teachers that came up with some plans that worked for me. Mr. Merica's above recollection of receptivity and implementation of constructive assistance was confirmed through the undisputed testimony of Ms. Hindman, who on three separate occasions documented specific improvements she observed in Mr. Merica's classroom on each of her return visits. Use of Computer, Games, and Newspaper as Teaching Aids Answering those allegations regarding his use of video and computer games as teaching tools, Mr. Merica's undisputed response was: I said I never played them [video games] during instructional time. Students played them sometimes and it was part of the IEP. There were various video games. There was many of them and one they talked about a lot was the golf. But, you see, these kids have kinesthetic problems and we're trying to teach them how to manipulate the mouse, keyboards and other things. There was a racecar game that they used to use, plus it was good for their eye-hand coordination because they were kinesthetically challenged kids. They were in IEP. It was in the IEP that they were supposed to be kinesthetically challenged to whatever level they were to try to take them another year's worth. They didn't even call it grade level, but another year's worth of progress. They were approved, by the way. As far as I know, every game that I brought was approved by the school board or if it was not, nobody told me it was not. There was a list of computer software that you could use for kinesthetic(s), but the list was not always complete. There was also ones for learning and some of the software I even created myself and I made sure it was approved by the office before I even used it because I created it. I wrote it and I wanted to make sure that it was okay with them. But they were very, very, academic. Mine dealt more with reading and -- it never had any kinesthetic(s) in it at all. So mine was easy to approve. ---I knew the list, but again the list -- it even says it does not include all the new software. It does not include all the new software. There are ones that we know about. And the same thing with video list. They had a video list. They have a video list, but it also said under these circumstances, these are -- generally a "G" movie is approved, but you know -- the list was always being compiled. It was always new it always had a little thing in there like, we may be incomplete, check with your principal. Answering the question, "[w]hat is kinesthetic?" Mr. Merica stated: Kinesthetic is using hand-eye coordination. They are physically impaired kids. Some of them were trying -- they might even some kind of physical deformity or nerve damage or cerebral palsy and they were trying to get them to manipulate their hands. Mr. Merica's selections of newspapers, computer games, and specific TV programs as associative resource educational tools for his students were undeniably appropriate resource materials and activities related to learning goals for his students with various learning and physical disabilities. No witness for the Commissioner, including Principal Griffin, the ART, and the ESE specialists, testified to the contrary. Mr. Merica denied that he had sexually harassed his co-workers, and his denials were confirmed by the testimonies of the alleged victims who were called to testify by the Commissioner. He denied "being off task when in the classroom." He denied playing video games in class during teaching and instruction time. Mr. Merica's denials of essential elements in the Amended Administrative complaint, even if unbelievable, does not prove the accusations. The burden remains with the Commissioner. Answering the allegation of "reading the newspaper in class," Mr. Merica stated: If there was a current event and we were talking about current events or -- the kids even had papers at that time, so we have used the paper in an educational way in the school before. Answering the allegation of allowing his class to watch the television program, The Price is Right, Mr. Merica stated: That's a possibility, because at one time in PI, our kids were not going to the lunchroom. They were served lunch in the room. Well, that was a time where I was not present. It was the aides on attendance. It was their duty. That was my time. I have a duty-free lunch is what they call it. It's part of the contract. I didn't always take that time. They knew if they needed help, I would help. If there was some special function going on or something like that, I would not necessarily go to lunch. But as a general rule I did do lunch, and those kids were in the room and sometimes the TV was on and the news during lunch period. It was lunch period for the children, too. Mr. Merica added that he was not aware of any prohibition against putting the TV on during the children's lunch period. Answering his attorney's question why he placed a "Do you need a Sub?" note (the Board's Exhibit 62) in some but not all his co-workers mailboxes, Mr. Merica stated: That's self-explanatory. It says: "Do you need a sub? If so please call Mr. Merica at 985-0203. Do not call before 6:00 a.m., or, you will have to deal with me personally. Can you spell DEAD?" I put it in a few teachers' mailboxes--friends mainly--I'm not a sub. People know that. The people that I gave this to know that I was not a sub. It's obviously a joke. The joke means that I don't think its appropriate to call anybody before 6:00 a.m. in the morning, you know, to disturb their family.--- As far as I know, they wanted to have a new policy because the secretaries didn't want to have to deal with sub calls anymore. So they said to start calling the subs before 6:00 o'clock in the morning to make sure they get there, and by the way, it doesn't say--can you spell dead? That's a little inside pedagogy, whatever you want to call it. It's a little inside teaching joke. "I hope you can spell." Based on the situations and circumstances at the time he engaged in activities and conduct in findings 206 through 211 and findings 229 through 234, I find Mr. Merica's explanations were plausible, reasonable, and within a teacher's authority and obligation to be creative and innovative by providing one or more methods of training to attain specific individual educational goals, based upon the physical and/or mental limitations of students and in concert with the educational goals as stated in their respective IEPs. Realizing that Foster administration and the Board were in the process of terminating his employment contract at the next Board meeting, Mr. Merica wrote a November 2, 1999, memorandum to Dr. Binnie and Principal Griffin, suggesting that he be transferred (to another school) as an alternative solution. The request of transfer was denied. By letter of January 13, 2000, Dr. Earl Lennard, Superintendent, the Board, suspended Mr. Merica with pay until the Board meeting on January 18, 2000, at which point his contractual employment with the School Board was terminated. The School Board's annual renewal of Mr. Merica's yearly contract of employment during Principal Payne's tenure as principal of Foster provides a reasonable inference, and I so infer, that the 2000 termination of Mr. Merica's annual contractual employment was based primarily upon issues that were identified and raised by Principal Griffin during the mid-1998 through 2000 period when she, and not Ms. Payne, was principal at Foster. There is no evidence of record that Foster brought to the attention of the Board or that the Board considered allegations of or findings of professional misconduct that had occurred during the 1994 through 1998 time period when Ms. Payne was principal at Foster Elementary. Amended Administrative Complaint Material Allegations Paragraph 3(a) The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica, at unspecified times, demonstrated heightened anger while conferencing with Principal Payne. The evidence proved clearly and convincingly that between 1998 and 1999,8 Mr. Merica yelled at Principal Griffin while conferencing with her as alleged in Paragraph 3(a) of the Amended Administrative Complaint. I do not find that Mr. Merica "pointed his finger in his principal's face and being emotionally out of control while conferencing with Principal Griffin." The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica failed or refused to comply with specific requests or specific instructions given by Principal Payne during her tenure as principal at Foster during the period of 1994 through mid 1998 or that Mr. Merica refused to comply with specific requests or specific instructions given by Principal Griffin during her tenure from mid-1998 through 1999, as alleged in paragraph 3(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica made derogatory and/or disrespectful remarks specifically about Principal Payne or specifically about Principal Griffin to and in the presence of his co-workers as alleged in paragraph 3(c) of the Amended Administrative Complaint. Paragraph 4 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica rejected constructive criticism and assistance from those whose positions required giving such constructive criticism and assistance as alleged in paragraph 4(a) of the Amended Administrative Complaint. To the contrary, the reliable evidence proved that between 1994 and 1999, specifically in the mid and latter part of the 1999 calendar year, Mr. Merica accepted and responded positively to constructive criticism and offers of assistance from those whose position required giving such constructive criticism and assistance. The material and relevant evidence proved, clearly and convincingly, that on unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and interrupting speakers when they were speaking during faculty meetings as alleged in paragraph 4(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica was disruptive at faculty meetings by banging on tables and by making subversive and derogatory statements about the administration, in the presence of students and parent and faculty as alleged in paragraph 4(b) of the Amended Administrative Complaint. Paragraph 5 The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, during February 1999 as alleged in paragraph 5(a) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, an intern and teacher at Foster as alleged in paragraph 5(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica sexually harassed co-worker, K.R., a teacher at Foster Elementary as alleged in paragraph 5(c) of the Amended Administrative Complaint. Paragraph 6 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica frequently left his class with his aides so that he could walk around campus, socialize, and/or monitor other teachers and their students as alleged in paragraph 6(a) of the Amended Administrative Complaint. The material evidence proved on those occasions, recalled by Mr. Merica and his DEES attendant who was an on-scene observer, that his absences from his classroom were for legitimate purposes within his obligations as a professional teacher in the Hillsborough County school system. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica's use of alternative methods such as video games, newspapers, and other tools and equipment to teach his students were "ineffective teaching tools and student management" as alleged in paragraph 6(b) of the Amended Administrative Complaint. To the contrary, the undisputed evidence proved that Mr. Merica's use of other supportive, available, and permissible means and methods such as video games, newspapers, and other tools and equipment for stimulating his PI students' interest were effective teaching tools. The material and relevant evidence failed to prove, clearly and convincingly, the factual basis to support allegations that between 1994 and 1999 Mr. Merica (1) utilized ineffective lesson plans, (2) utilized ineffective behavioral management plans, (3) failed to keep students academically engaged, and (4) failed to control his students and/or gain their respect as the manager of the class as alleged in paragraph 6(c) of the Amended Administrative Complaint. Paragraph 7 The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica restrained students without the required ACT certification as alleged in paragraph 7(a) of the Amended Administrative Complaint. The evidence proved that Mr. Merica restrained "unruly" students and restrained "a student" in defense of his personal safety and that of other students in the time-out class incident herein found. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica yelled in the faces of students as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. Through the testimony of two students, Demetrie White and Jarmaal Rumlin, it is clear when Mr. Merica was yelling in their face(s) it was, in part, to be heard over their yelling at him and/or each other when they were kicking the ball and playing during time-out. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica exhibited out-of-control or emotional forms of discipline as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. The material and relevant evidence proved that between 1994 and 1999, Mr. Merica restrained one unruly large male ESE student that was not enrolled in his class without a request from the teacher who was responsible for the class, as alleged, in part, in paragraph 7(c) of the Amended Administrative Complaint. Paragraph 7(d) was withdrawn by the Commissioner. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica's teaching and student behavior management was ineffective, including: frequently leaving his class with aides so that he could walk around campus, socialize, and/or monitor other teachers and their students. when in his class, frequently playing video games on his computer, reading a newspaper, or reviewing architectural designs. utilizing ineffective lesson plans and behavioral management plans, failing to keep students academically engaged, and failing to control his students and/or gain their respect as the manager of the class. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica restrained unruly students without the required ACT certification. The evidence demonstrated that in each proven encounter of unruly student restraint, Mr. Merica acted to protect the unruly student, other classmates, and, on two occasions, protect himself and another colleague. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica restrained an unruly male student who was not enrolled in his class without waiting for the female teacher to ask for such assistance as alleged in paragraph 7(c) of the Amended Administrative Complaint. The evidence demonstrated and it is found that by restraining the unruly male student, Mr. Merica prevented possible potential injury to the unruly student, to the female teacher, to the grandmother volunteer, and to other students of both classes who were present in the hallway at the time of the incident. Paragraph 7(d), alleging inappropriate discipline of several students on or about September 23, 1999, was withdrawn by Petitioner. Paragraph 8 The Commissioner failed to prove, by clear and convincing evidence, allegations in paragraph 8 of the Amended Administrative Complaint that Respondent met with his principal and county employees to discuss and received letters of reprimand for each act alleged in paragraphs 1 through 7 of the Amended Administrative Compliant. Paragraph 9 The Commissioner proved, by clear and convincing evidence, that the Board terminated Respondent's contractual employment as a teacher with Hillsborough County in 2000. The burden of proof required to terminate a contract of employment is not the clear and convincing evidence burden of proof standard required to revoke a license. The Commissioner offered no documented proof, however, proving the Board's decision was based specifically on the allegations found in paragraph 9 of the Amended Administrative Complaint. There is no documented evidence of record that identifies the specific basis upon which the ultimate determination to terminate Mr. Merica's 2000 school year employment contract was made by the Board. The Commissioner did not prove, clearly and convincingly, by material and relevant evidence of record, the allegations that "[E]ffective September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards," as alleged in paragraph 9 of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Finding of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Education enter a final order finding Respondent, Neil Merica, in violation of Subsection 1012.795(1)(i), Florida Statutes (2003), and imposing the following penalties: Suspend Respondent's right of renewal of his teacher certificate and place Respondent on probation for a period of three years, to require successful completion of an anger management course and other such conditions as the Commissioner may specify upon re-application under existing requirements for certification by the State Board at the time the suspension expires. Impose a fine on Respondent in the amount of $1,000.00 for violation of Section 1012.795(1)(i), Florida Statutes (2003), to be paid prior to or at the time of re-application for certification, and other such conditions as the Commissioner may specify. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of March, 2005.
The Issue Whether Respondent committed misconduct in office and violated Miami-Dade School Board Rules, and, if so, whether such conduct constitutes just cause to dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed as an exceptional student education ("ESE") teacher at Olinda Elementary School ("Olinda"), a public school located in Miami-Dade County, Florida, and part of the Miami-Dade Public Schools. At all times pertinent to this proceeding, Respondent's employment was governed by the collective bargaining agreement ("UTD Contract") between Petitioner and the United Teachers of Dade, Petitioner's rules, and Florida law. Applicable Requirements of IDEA and Florida Law The Individuals with Disabilities Education Act ("IDEA") requires, as a condition of receiving federal funding assistance for educating disabled students, that local education agencies (in this case, Petitioner and Olinda) establish and maintain procedures in accordance with the IDEA and state policies and procedures implementing the IDEA, to ensure that students with disabilities are guaranteed certain safeguards regarding the provision of a free appropriate public education ("FAPE"). See 20 U.S.C. § 1415(a); see also 34 C.F.R. § 300.201. Therefore, it is imperative that Petitioner comply with the procedural and substantive requirements of the IDEA and implementing federal regulations, and with Florida Statutes and administrative rules implementing the IDEA in Florida. To this end, Petitioner requires personnel employed by Miami-Dade County Public Schools (the "District") to strictly follow the standards and processes it and the individual schools within the District have established to provide ESE services to disabled students consistent with the IDEA and Florida law. The IEP is a critical component in providing FAPE to disabled students under the IDEA. See 20 U.S.C. § 1402. The IEP is a written statement for a disabled student that, among other things, describes the student's present level of academic achievement and functional performance; sets forth measurable annual goals designed to enable the student to be involved and make progress in the general curriculum; identifies special education, related services, and supplementary aids and services that will be provided to assist the student in obtaining the annual goals; and establishes the means by which the student's progress will be measured. See Fla. Admin. Code R. 6A-6.03028(3)(h); 34 C.F.R. § 300.320. The IEP for each student must be developed, reviewed, and revised in accordance with Florida Administrative Code rules1/ that establish the composition of the IEP team, the respective roles of its members, the procedures for conducting IEP team meetings, and the substantive requirements for the IEP. Creation and Maintenance of IEPs at Olinda Respondent began teaching at Olinda in September 2010. Respondent was assigned the responsibility for creating and maintaining IEPs for the third, fourth, and fifth grade ESE students2/ at Olinda for the 2010-2011 school year. IEPs are created at Olinda pursuant to a process established by the school's administration and the local education agency ("LEA") representative,3/ consistent with the IDEA, state law, and District policy. Specifically, ESE teachers are responsible for creating, developing, and maintaining the IEPs for the school's disabled students. As part of this process, the teacher responsible for a particular disabled student notifies the parents and IEP team members4/ regarding the IEP team meeting and schedules the meeting. The meeting is held with as many team members as possible in attendance. The teacher then creates the IEP using the District's Special Education-Electronic Management System ("EMS"). To create the IEP, the teacher logs onto EMS using his or her unique employee identification ("ID") number and unique password. The employee ID number and password are confidential and may only be used to log into EMS by the teacher to which they belong. The teacher creates a draft IEP, which is circulated to each IEP team member who attended the meeting for comment and input. The teacher then revises the draft as appropriate, finalizes the IEP, and obtains the signatures of the team members who attended the meeting. The finalized IEP is to be signed only by the persons who actually participated in the IEP team meeting.5/ Once the IEP is signed by all team members, the teacher faxes it into EMS and it becomes designated as "Final."6/ The teacher responsible for creating the IEP is the only person authorized to fax it into EMS. Once the IEP is Final, a hard copy is to be printed and included in the student's cumulative folder. Once the IEP is "Final," it cannot be changed without going through the established procedures to modify the IEP, including notifying all IEP team members and conducting an IEP meeting. Audit of IEPs at Olinda On or about February 25, 2011, Adrian Montes, the Principal at Olinda, was informed that the parent of an Olinda ESE student had complained to the Florida Department of Education regarding the placement of her child. Montes contacted the parent regarding her concerns. The parent denied having made such a complaint. The student's IEP was soon scheduled for annual review, so Montes decided to attend the IEP meeting. The meeting was conducted on February 28, 2011. At the meeting, Montes noticed Respondent making numerous mistakes regarding creation of the IEP. Concerned about the integrity of the IEP creation process at Olinda, he requested Leticia Fernandez, the school's LEA representative and head of its ESE program, to conduct an audit of Olinda's IEPs. On or about March 1, 2011, Fernandez reported to Montes that three IEPs for students for which Respondent was responsible were missing from the students' cumulative folders, where pursuant to school protocol, they are required to be kept.7/ Montes asked Respondent about the missing IEPs. Respondent provided him with hard copies of the documents the following day. According to Respondent, these copies had been stored in her classroom. Montes compared the hard copies with the electronic versions of the same students' Final IEPs stored in EMS, and noted several discrepancies between the hard copies and the electronic version of the Final IEPs in EMS. Fernandez' audit revealed that school-wide, five IEPs contained discrepancies between the hard copies and the Final electronic versions stored in EMS, and that in some cases the IEPs were missing signatures or appeared to have falsified signatures. All five IEPs belonged to students for which Respondent was responsible. IEPs for which Respondent was Responsible Respondent was responsible for creating and maintaining the IEPs for J.A.B., J.D.H., L.L.E., S.M.M., and C.A.M. The Final IEPs for some of these students contained signatures that did not belong to the person purported to have signed the IEP, and some were not prepared or finalized in accordance with the District's established protocol for creating IEPs. Specifically, with respect to J.A.B., the signature for general education teacher Gabriella Delgadillo appearing on the Final IEP was not hers. With respect to J.D.H., the parent's signature appearing on the Final IEP was not hers. She credibly testified that she did not attend any IEP meetings for her child, would have attended had she been notified, and did not sign the Final IEP. Additionally, Respondent obtained the signatures of general education teacher Charrise Mosley and exceptional education teacher Vickie Dunnom on the IEP even though neither attended an IEP meeting for J.D.H. With respect to L.L.E., the signature on the Final IEP for Gabriella Delgadillo was not hers and she did not attend any IEP meetings for L.L.E. With respect to S.M.M., the signature for Charrise Mosley that appears on the Final IEP was not hers.8/ Respondent also requested and obtained Mosley's signature on the IEP even though Mosley did not attend the IEP meeting for S.M.M. With respect to C.A.M., Gabriella Delgadillo, Vickie Dunnom, guidance counselor Adriana Sanabria, and school psychologist Azadeh Trinidad-Oroujalipour all credibly testified that they had not attended an IEP meeting for C.A.M., and each credibly testified that the signature appearing on the Final IEP was not hers. C.A.M.'s parent also testified that she had never been notified of, and had not attended, any IEP meetings for C.A.M. Charges in Notice of Specific Charges Proven Petitioner's Notice of Specific Charges alleges that Respondent corrupted the IEP creation process in violation of the IDEA, Florida law, and Petitioner's rules, by forging the signatures of certain school personnel on IEPs of students for which she was responsible; asking IEP team members to sign IEPs for students without having attended the IEP meetings for those students; and designating IEPs as "Final" in EMS without having conducted IEP meetings for those students. Respondent testified that she did not forge any signatures on the IEPs and she further claimed that on some of the IEPs, her signature was forged. No witnesses testified that they saw Respondent or anyone else forge signatures on the IEPs. However, Respondent, through her unique confidential employee ID number and password, was the only person who had access to EMS to fax in the finalized IEPs on which the falsified or forged signatures appeared. The circumstantial evidence in this case gives rise to the inference, unless rebutted, that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges.9/ Respondent failed to present credible evidence to rebut this inference. Specifically, Respondent claimed that because the student cumulative files were stored in a cabinet that was not always locked and therefore accessible at times to other school personnel, others had opportunity to forge the IEPs and, in fact, did so. However, her testimony on this point was vague and speculative; she did not present any specific, credible evidence regarding who may have forged the IEPs, or when, why, or how they did so, and her testimony was not corroborated by any other witnesses. Furthermore, whether the cumulative folders were accessible to others, or even whether hard copies of the IEPs in the folders were forged, does not explain or otherwise negate that falsified signatures appeared on the Final IEPs that were faxed into EMS. Accordingly, the undersigned finds that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges. Additionally, the credible evidence establishes that Respondent sought and obtained the signatures of IEP team members who had not attended meetings for the students whose IEPs they were asked to sign. Respondent's actions in doing so were contrary to Olinda's established protocol that only persons attending an IEP meeting for a particular student are to sign that student's IEP. Respondent claimed that she was forced to seek signatures of IEP team members who had not attended the meetings because Montes would not excuse them from class, so they were unable to attend. However, her testimony was not corroborated by any other witnesses, several of whom were IEP team members whose signatures she obtained even though they had not attended IEP team meetings. The undersigned finds Respondent's testimony on this point unpersuasive. The evidence also establishes that Respondent did not conduct IEP meetings for certain students before finalizing those students' IEPs. Specifically, the teachers (other than Respondent) whose names appear on the Final IEPs of L.L.E. and C.A.M. credibly testified that they did not attend any IEP meetings for these students. The parents of these students also credibly testified that they were not notified of, and did not attend, any IEP meetings for their children. Without the teachers and parents comprising the IEP teams for these students in attendance, the IEP team meetings for these students could not have taken place. Respondent did not present any credible evidence that she did, in fact, conduct the IEP meetings for these students. Accordingly, it is determined that Respondent finalized certain students' IEPs without having conducted IEP team meetings for those students, as charged in the Notice of Specific Charges. Findings of Ultimate Fact Petitioner seeks to terminate Respondent's employment as a teacher with Miami-Dade County Public Schools. Pursuant to section 1012.33(1)(a),10/ Petitioner can terminate Respondent only for "just cause." "Just cause" is defined to include, among other things, "misconduct in office." Florida Administrative Code Rule 6A-5.056(3)11/ defines "misconduct in office" as a violation of the Code of Ethics of the Education Profession as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006, which is so serious as to impair the individual's effectiveness in the school system. Petitioner's rules 6Gx-4A-1.21 and 6Gx-4A-1.21 incorporate these standards and make them applicable to District personnel, including instructional personnel. The persuasive evidence establishes that Respondent violated the Code of Ethics of the Education Profession codified in rule 6B-1.001. Her actions in failing to hold or conduct IEP meetings for disabled students in her charge and in falsifying or forging signatures on Final IEPs for these students did not adhere to Florida or federal law regarding the creation and maintenance of IEPs, a key component in the delivery of a free appropriate public education pursuant to disabled students pursuant to the IDEA and Florida law. By her actions, Respondent demonstrated that she did not value the worth and dignity of the students for which she falsified IEPs or failed to hold IEP meetings. She did not pursue the truth and failed to demonstrate devotion to excellence or dedication to the acquisition of knowledge by her students. Further, her actions demonstrate that her primary professional concern was not for her students or the development of their potential. She did not exercise acceptable professional judgment or integrity, and her actions in falsifying the IEPs and failing to hold IEP meetings were unethical. The persuasive evidence also establishes that Respondent violated the Principles of Professional Conduct for the Education Profession, rule 6B-1.006. Specifically, Respondent did not protect her disabled students from conditions harmful to learning, and, in fact, affirmatively engaged in conduct harmful to their learning. She also intentionally suppressed subject matter relevant to her students' academic progress. By failing to follow the procedures and requirements of the IDEA and Florida law, she denied her disabled students' rights regarding the opportunity to obtain a free appropriate public education. She did not maintain honesty in her professional dealings and submitted fraudulent information on documents in connection with her professional activities. The persuasive evidence demonstrates that Respondent's actions also violated Petitioner's rule 6Gx-13-4A-1.21, "Responsibilities and Duties." Specifically, she engaged in conduct that did not reflect credit on herself or on the school system. She did not prepare, maintain, and submit accurate reports regarding her disabled students pursuant to Florida law, Department of Education Rules, Petitioner's rules, and the established IEP creation process at Olinda. By falsifying IEPs and failing to conduct IEP meetings, she failed to efficiently and faithfully teach her disabled students in accordance with Florida law. The persuasive evidence also establishes that Respondent violated Petitioner's rule 6Gx-4A-1.213, the "Code of Ethics." Petitioner's rule incorporates the standards established in rules 6B-1.001, the Code of Ethics of the Education Profession in Florida, and 6B-1.006, the Principles of Professional Conduct for the Education Profession in Florida. As previously discussed, the evidence establishes that Respondent violated the standards established in these rules. Further, Respondent violated rule 6Gx-4A-1.213 by failing to make the well-being of her disabled students and the honest performance of her professional duties her core guiding principles, failing to treat her students with respect and fairness, and failing to deliver her job duties in an efficient and effective manner. Based on the foregoing, it is determined that Respondent's conduct constitutes misconduct in office, and that her misconduct is so serious as to impair her effectiveness in the school system. Accordingly, it is determined that just cause exists for Petitioner to terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order terminating the employment of Respondent, Walita McBride, as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of July, 2012.
The Issue The issue in this case is whether Petitioner should be exempt from disqualification for employment pursuant to Section 435.07(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which an exemption is required pursuant to Sections 435.06 and 436.07(1). Petitioner seeks the exemption to operate a day care service out of her home. Petitioner is an employer and an employee within the meaning of Sections 435.02(1) and (2). Petitioner operates an unlicensed day care center from her home and employs at least one other person to assist her in providing day care for an undetermined number of children. Respondent is the licensing agency defined in Section 435.02(3). Petitioner has provided day care services for parents in the neighborhood on an intermittent basis from 1979 through the present. Petitioner has provided day care services to some parents gratuitously while other parents have paid for day care services. Parents who have paid for day care services have paid according to their means. No evidence established a fee schedule for day care services. Petitioner knows she is required to obtain a license in order to operate a day care business. In 1987, Petitioner obtained such a license but allowed that license to expire. On October 27, 1993, the Orange County Sheriff's Office charged Petitioner with aggravated child abuse in violation of Section 827.03, Florida Statutes (1993) ("Section 827.03"). Violation of Section 827.03 is a felony which disqualifies Petitioner from employment pursuant to Sections 435.03(2)(x) and 435.04(2)(x). The state attorney reduced the charges against Petitioner to a first degree misdemeanor charge of child abuse. Petitioner entered a plea of nolo contendere to the misdemeanor charge in Case Number MO 93-17467. The court withheld adjudication of guilt, placed Petitioner on supervised probation for six months, required Petitioner to pay fines and costs of $115, and required Petitioner to complete a parenting program. Petitioner satisfied the terms of her probation, although Petitioner did not do so in a timely manner. Petitioner missed at least one meeting with her probation officer and required additional time to pay the fine and court costs. Sometime in February 1999, Petitioner applied for a license from Respondent to operate her existing day care service. Respondent denied the application on the basis of the 1993 misdemeanor charge. On February 25, 1999, Petitioner requested an exemption from disqualification. Respondent denied the request for exemption, and Petitioner requested this hearing. Sufficient time has elapsed since the incident within the meaning of Section 435.07(3). Approximately six years have elapsed since the incident. The nature of the harm caused to the victim was significant. On October 17, 1993, Petitioner administered corporal punishment to her eight-year-old biological grandson using a telephone cord. The punishment left two open wounds above and below the left knee and a raised looped bruise on the leg. The wounds and bruises were visible to the arresting officer on October 27, 1993. The nature of the harm to the victim was not life threatening and did not require medical treatment. School officials observed the injuries to the victim and reported them to the Sheriff's Office. Petitioner denies that the open wounds observed by the arresting officer were caused by the incident. Petitioner claims the open wounds were caused during an accident at play. However, resolution of that factual issue is not necessary in order to determine whether Petitioner is entitled to an exemption. A more important issue is whether the incident was a single isolated incident or a common practice by Petitioner. On that issue, there is conflicting evidence. The Charging Affidavit alleges that the victim claimed Petitioner routinely "whipped" the victim, his brother, and his sister with a telephone cord. Petitioner denies she disciplined any of her grandchildren with anything but her hand other than the one incident at issue in this proceeding. Petitioner claims that the incident arose from her frustration over recurring teacher complaints to Petitioner that the victim was disrupting classes and not performing in school and over Petitioner's inability to correct the victim's misbehavior after repeated attempts to address the situation without spanking the victim. The factual issue is resolved by the testimony of the mother of the victim and the testimony of other mothers who entrust the care of their children to Petitioner. The mother of the victim is the mother of the victim's brother and the victim's sister and also is Petitioner's biological daughter. The mother testified at the hearing that the incident in 1993 was the only time Petitioner had disciplined her children with anything but a minor hand slapping. The mother's testimony was credible and persuasive and consistent with the testimony of other mothers who have entrusted, and continue to entrust, the care of their children to Petitioner. There is no evidence that Petitioner has ever disciplined any child unrelated to Petitioner. Petitioner demonstrated sufficient evidence of rehabilitation since the incident in 1993. After Petitioner completed the parenting course required by the terms of her probation, Petitioner continued her education in child care. She completed three courses given by Respondent and earned 33 credit hours. Petitioner completed courses in "Fundamentals of Child Care," "Developmentally Appropriate Practices for Young Children," and "Introductory Child Care Training Courses." Petitioner demonstrated sincere remorse for the 1993 incident. Petitioner also demonstrated an awareness of the emotional harm caused, her importance to young children in her care, and an adequate awareness of appropriate parenting for children while they are in her care. Petitioner continued to care for the victim after 1993 without further incident. The mother of the victim and the mothers of other children continued to entrust the care of their children to Petitioner after the incident. The testimony of these mothers was consistent, credible, and persuasive. Petitioner has repaired her relationship with the victim. Both have learned to accept responsibility for their actions. The victim is now a well-adjusted young man who loves his grandmother and enjoys spending time with her. Counsel for Respondent exposed several inconsistencies in Petitioner's testimony with the intent to discredit Petitioner's testimony. Those instances are a matter of record and not addressed individually in this Recommended Order. After hearing the testimony of the mothers at the hearing, it is unlikely that Petitioner intended misrepresent the facts. It is more consistent with the testimony of the mothers at the hearing to find that the discrepancies in Petitioner's testimony resulted from Petitioner's lack of knowledge and business acumen rather than from her lack of good faith. Counsel for Respondent made much of the fact that Petitioner has operated, and continues to operate, an unlicensed day care center out of her home. Counsel noted in the record that the letter denying Petitioner's application for a license provides Petitioner with notice that the operation of an unlicensed day care business is a misdemeanor. Petitioner acknowledges this fact but claims that the day care center is her only means of financial support and the only affordable alternative for working parents who utilize her service. The issue of whether Petitioner currently operates an unlicensed day care center must be addressed in a separate proceeding if Respondent chooses to do so. Respondent must separately charge Petitioner with operating an unlicensed day care center, give Petitioner adequate notice of the charge, give Petitioner a point of entry, and provide Petitioner with a reasonable opportunity to defend the charge. Respondent cannot raise that charge for the first time in this proceeding as a ground for denying the exemption requested pursuant to Section 435.07(3) and effectively transfer the burden of proof to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999. COPIES FURNISHED: John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801-1782 Annie Bell 2218 Nantes Court Orlando, Florida 32808
