Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders). Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 5 through 12 are accepted. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 14 through 19 are accepted. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance. Paragraph 21 is accepted. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument. Paragraphs 23 through 25 are accepted. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact. Paragraphs 29 and 30 are accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER): Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time. Paragraphs 2-4 are accepted. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Frank Harder Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY 2929 South West Third Avenue, Suite One Miami, Florida 33129 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue The issue is whether the Respondent, Cedric Mitchell (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. See § 1001.32, Fla. Stat. (2006). At all times material to the allegations of this case, the Respondent, Cedric Mitchell, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the School District. On or about July 20, 2005, the Petitioner’s Office of the Inspector General issued a memorandum to Dr. Rudolph F. Crew, the Superintendent of Schools, that referenced 106 teachers who were identified by a grand jury investigation of teachers who obtained academic credits from Eastern Oklahoma State College. The Respondent was one of the teachers. Thereafter, a lead sheet was generated to direct the Miami-Dade County Schools Police Department to conduct an investigation of the allegations. The claim asserted that the Respondent had obtained academic credits for the purpose of certification, recertification and/or endorsements without availing himself of actual academic class time, work, or effort. Michael Alexander, a detective with the Miami-Dade Schools’ Police Department, was assigned to the matter. Detective Alexander interviewed the Respondent on or about November 29, 2005. At that time the Respondent waived his right to representation and freely admitted to the detective that he obtained course credit from Eastern Oklahoma State College but attended no classes and did no coursework. According to the detective, the Respondent described a scenario whereby the Respondent went to Palmetto High School on a Saturday and spoke with a “Dr. McCoggle” who advised him as to the coursework needed for certification and charged him $775.00. After making the payment to Dr. McCoggle, the Respondent did nothing of an academic nature to complete coursework. Sometime later a transcript denoting the appropriate coursework came to the Respondent’s home. Despite having performed no academic work to achieve the credits, when he received the transcripts for the courses, the Respondent submitted them to the Petitioner to achieve certification. Had he not submitted documentation of the courses needed for certification, the Respondent would have been terminated from his employment with the School District. There is no evidence in this record that the Respondent actually ever legitimately completed the academic course work necessary for certification. Even after the Respondent knew or should have known that the procedure he used to achieve certification was unacceptable, there is no evidence that the Respondent ever completed academic course work to support the Respondent’s certification to teach for the Miami-Dade Public Schools. Once the Respondent became aware that he was under investigation for participating in the inappropriate scheme to obtain college credit, he joined the teachers’ union and sought the union representative’s advice regarding the matter. According to the union representative, Michael Molnar, the Respondent did not indicate to him that he had done no course work or attended no classes. Had the Respondent been candid in that matter, Mr. Molnar would have advised the Respondent not to implicate himself or to resign before implicating himself. Because that was not the case, the union representative told the Respondent to be truthful and honest in answering the questions posed by the Petitioner. To that end, the Respondent confirmed the information regarding his credits from Eastern Oklahoma State College when questioned by the Petitioner. The Respondent did not contest the findings reached in Detective Alexander’s report of the investigation. The Respondent did not contest the findings asserted in the Summary of Conference-For-The-Record prepared by Lucy Iturrey. The Respondent was not coerced or otherwise forced to admit that he accepted college credit from Eastern Oklahoma State College and submitted that credit for certification purposes. Had the Respondent been candid with the union representative and been advised that he could refrain from making a statement to the Petitioner (and obviously did not admit the facts of the scheme), the underlying facts regarding the scheme (to give academic credits where no credits were earned) could have been ascertained through other means. The widespread use of the scheme was well- documented and led to the successful criminal prosecution of its “kingpin.” The School Board of Miami-Dade County took action at its meeting on March 15, 2006, to suspend and initiate dismissal proceedings against the Respondent. That preliminary action acknowledged that the outcome of the matter was subject to an administrative hearing if requested by the employee. The Respondent timely requested an administrative hearing to contest the proposed action and the case was timely forwarded to the Division of Administrative hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County enter a Final Order terminating the Respondent’s employment contract. Whether or not the Respondent could be eligible for re-employment with the Petitioner should be based upon whether the Respondent ever achieves the academic status for certification based upon academic performance and coursework completed through a legitimate means. DONE AND ENTERED this 15th day of February, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Ave, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Lawrence R. Metsch, Esquire Metsch & Metsch, P.A. Aventura Corporate Center 20801 Biscayne Boulevard, Suite 307 Aventura, Florida 33180-1423
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
Findings Of Fact Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation, misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of October, 2002.
Findings Of Fact The Petitioner, Earl Burno Allen, was born November 7, 1951. As of April, 1981, the Petitioner had attained an Associate Arts Degree from Dade County Community College. The Petitioner has had no teaching experience as of the date of the final hearing. The Petitioner presently is employed with the Veterans Administration at its hospital in Dade County, Florida, where he is employed as a "facilitator." The Petitioner testified, in a general way, that although he had a number of criminal offenses of record, that he was last released from prison on October 1, 1980, and has had his Civil Rights restored and therefore maintains that his past convictions should not be used against him to his prejudice in denying him certification as a substitute teacher. Subsequent to his last release from prison, the Petitioner obtained a federal civil service position at the Veterans Administration Medical Center in Dade County. The Petitioner acknowledged that his earliest altercation with legal authorities occurred in approximately May of 1970, when he was allowed by an unidentified court to enlist in the Army "to avoid termination of probation." The Petitioner was enlisted in the United States Army for approximately one year when he was given a general discharge "under honorable conditions." The Petitioner maintains that the discharge under those conditions occurred because of the offense of Absent Without Leave. The Petitioner argued that his denial of certification as a substitute teacher was motivated by reasons of racial discrimination, citing an instance where a white coach employed by the School Board of Dade County was rehired after committing a crime. The Petitioner presented no proof establishing that to be the motivation for the Respondent's denial of his certification in this instance however. The Respondent, through Exhibits 1 through 6, established that on or about October 3, 1969, the State Attorney's Office for the Eleventh Judicial Circuit filed a two count information in Case No. 69-8540, charging the Petitioner with larceny of an automobile, which was the property of one Carl E. Stoeber on or about September 10, 1969, in violation of Section 811.20, Florida Statutes. In count two of that information, the Petitioner was charged with unlawful use of the vehicle without the owner's consent in violation of Section 811.21, Florida Statutes. The Petitioner entered a plea of guilty to count two of that information on March 23, 1970, and adjudication was withheld with the Petitioner being placed on probation for a period of six months. On or about December 10, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a one count information in Case No. 71-10209-B. In that information, the Petitioner was charged with breaking and entering a dwelling on or about December 2, 1971, in violation of Section 810.01, Florida Statutes. The Petitioner was charged with feloniously breaking and entering the property of George Investment Company, Inc., a corporation doing business as Turf Motel. That entry was charged to be with the intent to steal or carry away money, goods or chattels of value of more than $100, in violation of Section 810.01, Florida Statutes. On January 17, 1972, the Petitioner entered a plea of guilty to that charge and was adjudged guilty and sentenced to one year in the Dade County Jail with credit for time already served. On or about November 17, 1971, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a one count information in Case No. 71-9595, in which it was charged that the Petitioner was guilty of larceny of an automobile belonging to one Dwight Carey on or about November 9, 1971, in violation of Section 814.03, Florida Statutes. As a result of that charge, a plea of guilty was entered by the Petitioner on January 17, 1972, and the court adjudged him to be guilty of that charge, sentencing him to confinement in the Dade County Jail for two days followed by probation for a period of two years. On or about December 28, 1972, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County filed a five count information in Case No. 72-8959 against the Petitioner. The first count of that information charged him with an offense, on December 9, 1972, of carrying a concealed firearm, to wit: a shotgun, in violation of 790.01, Florida Statutes. The second count of that information charged the Petitioner with unlawful possession of a sawed-off shotgun, in violation of Section 790.221, Florida Statutes. Count three of that information charged the Petitioner with robbery, on or about December 9, 1972, in that he allegedly unlawfully and feloniously assaulted one Willie Smith and did by force and violence or placing that person in fear, rob or carry away certain personal property of his, in violation of Section 813.011, Florida Statutes. Count four of that information charged the Petitioner with possession of a stolen motor vehicle on December 9, 1972, to wit: a 1965 Dodge automobile which was the lawful property of Robert Vawdergri, in violation of Section 814.03, Florida Statutes. Lastly, count five of that information charged the Petitioner with unlawfully, knowingly and feloniously buying, receiving or aiding in the concealment of stolen property, to wit: that same 1965 Dodge automobile, in violation of Section 811.16, Florida Statutes. The plea of guilty was entered by the Petitioner to count two of that information involving the unlawful possession of the sawed-off shotgun. Petitioner was adjudged guilty and a nunc pro tunc order amending his sentence, dated November 20, 1979, directed that the Petitioner be confined in the State Penitentiary for two and one-half years, with credit given for time already served in the Dade County Jail. On or about February 13, 1978, the State Attorney's Office for the Eleventh Judicial Circuit of Florida, in and for Dade County, filed a two count information in Case No. 78-1225. The first count of that information charged the Petitioner with unlawfully entering a structure, to wit: the property of H & S Stores, Inc., a building, on or about January 24, 1978. He was charged with entering that building with intent to commit a theft, in violation of Section 810.02, Florida Statutes. The second count charged the Petitioner with grand theft of the second degree by his removing from that property three television sets valued at more than $100, which were the property of H & S Stores, Inc., contrary to Section 812.014, Florida Statutes. The Petitioner was convicted of count one of that information, which charged him with burglary, and the court, on or about December 18, 1978, entered a order adjudging him guilty of the offense of burglary and sentencing him to two and one-half years imprisonment, which sentence was to run concurrently with the two and one-half year sentence pertaining to Case No. 72-8959-A. The Petitioner was released from prison on or after October 1, 1980, and subsequently completed two years of higher education at the Miami-Dade Community College and has obtained employment in the Federal Civil Service System as a "facilitator" at the Veterans Administration medical facility in Dade County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the Petitioner's application for the issuance of a substitute teacher's certificate be DENIED and that the petition be DISMISSED with prejudice. DONE and ENTERED this 31st day of March, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983. COPIES FURNISHED: Mr. Earl Burno Allen 6043 North West 20th Avenue Miami, Florida 33142 Craig R. Wilson, Esquire 315 Third Street Suite 204 West Palm Beach, Florida 33401 The Honorable Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 3230
The Issue Whether Respondent Gadsden County School Board (the School Board or Respondent) discriminated against Petitioner Ronald D. Jones by terminating him on the basis of his gender in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes
Findings Of Fact Petitioner is a male, who, in the past, has held a professional teaching certificate from the Florida Department of Education. Petitioner held a professional teaching certificate from July 1, 1994, until June 30, 1999, with a certification to teach social science to students in grades five through nine. Petitioner's professional teaching certificate expired on June 30, 1999, and, as a result, Petitioner was no longer deemed eligible to teach by the Florida Department of Education. Petitioner, however, was still eligible to be employed as a substitute teacher. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. The Discrimination Complaint filed by Petitioner alleges: I believe I was terminated because of my sex (male). I was initially hired as a substitute teacher in March 2007 and received an appointment to an instructional position on February 26, 2008. I received a letter from Superintendent Reginald James dated July 29, 2008 informing me that I would not be reappointed for the 2008-2009 school term. I was replaced by a female employee. Petitioner's Discrimination Complaint is based upon the fact that he was not reappointed at George Munroe Elementary School (George Monroe) for the 2008-2009 school year. Petitioner initially worked at George Monroe beginning March 2007, as a substitute teacher. For the 2007-2008 school year, Petitioner continued to work as a substitute for George Monroe until he was hired on January 14, 2008, to an instructional position, left vacant by the resignation of another teacher. In this position, Petitioner taught fourth grade from February 28, 2008, until the end of the school year. At the time he was hired to the instructional position, Petitioner did not hold either a temporary certificate or a professional certificate to teach in Florida. Rather, Petitioner had applied to obtain another certificate to teach social science for grades 5 through 9 and held an Official Statement of Status of Eligibility (Official Statement) from the Florida Department of Education dated August 1, 2007. According to the Official Statement, in order to obtain a three-year nonrenewable Temporary Certificate covering Social Science (grades 5-9), Respondent needed to submit: a) verification of employment and request for issuance of certificate on the appropriate form from a Florida public, state-supported, or nonpublic school with an approved Professional Education Competence Program; and b) the results of his fingerprint processing from the Florida Department of Law Enforcement and FBI. In addition to the submissions required for a temporary certificate, the Official Statement advised that in order for Petitioner to receive a Professional Educator Certificate valid for five years covering Social Science (Grades 5-9), Petitioner must also submit: a) a completed CG-10 Application Form; b) a $56 fee; c) a passing score on the Professional Education Test; d) a passing score on the social science (grades 5-9) subject area examination; e) evidence of completion of an approved competence program; and f) evidence of additional semester hours or teaching experience in specified areas. At the time that Petitioner was hired to the instructional position in January 2008, because George Monroe was experiencing a shortage of teachers, it was possible for individuals with an application pending with the Florida Department of Education to be placed in an instructional position where there was an immediate need, pending completion of all requirements. Therefore, even though Petitioner did not have either a temporary certificate or professional certificate, Petitioner was hired to the instructional position because there was an immediate need and he had a pending application. His hiring, however, was also considered an "out-of-field" placement because he did not hold either a current or a pending certificate to teach the fourth grade. Near the end of the 2007-2008 school year, George Monroe began preliminary classroom and grade assignments in preparation for the 2008-2009 school year. Petitioner was preliminarily assigned to a fifth-grade position pending appointment by the Superintendent. This preliminary assignment was reflected in the agenda and supporting materials for a faculty meeting held May 28, 2008, at George Monroe to discuss the upcoming year. The grade and room assignments showed Petitioner as tentatively transferring from teaching fourth grade in B3 room 6 to teaching fifth grade in room P 99-08. In addition to Petitioner's tentative assignments, there were a number of other preliminary grade and tentative room assignments reflected in the agenda and supporting materials for the May 28, 2008, faculty meeting. In addition to Petitioner being preliminarily assigned to fifth grade, Ms. Avila and Mr. Clum were tentatively transferred to fourth grade, and Ms. Sylvester was moved from fourth grade to fifth grade. The agenda and supporting materials also reflect new room assignments for those teachers. Being given a preliminary grade or tentative room assignment as reflected on the agenda and supporting materials was not a guarantee of continued employment. Because of budget constraints for the upcoming 2008- 2009 school year, George Monroe's school district (School District) instructed its school principals to reduce staff. Staff reduction strategies from the School District included the suggestion that principals recommend to the Superintendent for termination those teachers who were not certified or were teaching out-of-field. Teaching "out-of-field" occurs when a teacher, although holding a temporary or professional teaching certificate, is not certified to teach the particular subject area or grade level to which they have been assigned. In Florida, teachers are not considered highly qualified if they are teaching out of field. The strategy of recommending for termination those teachers who are uncertified or teaching out-of-field was designed to meet budget constraints by first reducing teachers who were not highly qualified. Ida Walker, who at the time was the principal of George Monroe, met with Petitioner at the end of the 2007-2008 school year, but prior to June 30, 2008,1/ to discuss the status of his teaching certificate. During that meeting, Petitioner acknowledged that he was having problems obtaining his temporary certificate, and Ms. Walker reminded him that in order to teach, he had to have the paperwork to show that he was qualified to teach. Ms. Walker, together with School District staff, recommended to School Board Superintendent Reginald James (Superintendent) that he not reappoint six teachers at George Monroe, including Petitioner, who had not provided evidence of a valid teaching certificate or who otherwise did not meet the requirements for certification set forth in their individual statements of eligibility received from the Department of Education. Consistent with that recommendation, in a letter dated July 10, 2008, the Superintendent informed Petitioner that Petitioner would not be re-appointed for an instructional position for the 2008-2009 school year.2/ Unknown to Ms. Walker or the Superintendent, on July 7, 2008, prior to the date of the July 10, 2008, letter from the Superintendent, the Florida Department of Education (Department) issued Petitioner a temporary certificate certifying Petitioner to teach social science for grades five through nine. There is no evidence, however, that Ms. Walker, the School District, the School Board, or the Superintendent received notice that the temporary certificate had been issued. The Department, as a matter of course, does not provide such notification. Rather, it is the responsibility of the applicant, in this case, Petitioner, to provide such notification. In a letter to the School Board dated July 29, 2008, the Superintendent listed the names of various teachers and other personnel employed by the School Board that he recommended for termination. Petitioner's name, as well as the names of five other teachers at George Monroe that had been earlier identified by Ms. Walker and District staff for non- reappointment, was included on the Superintendent's list of recommended terminations. The other five teachers from George Monroe on the Superintendent's termination list were all female. At the School Board meeting held July 29, 2008, the School Board approved the Superintendent's recommended terminations. Of the six teachers from George Monroe who were not initially reappointed, two, not including Petitioner, were subsequently rehired by the School Board after they provided proof of proper certification, reapplied to a particular school, and were accepted by a receiving principal. Prior to the final hearing in this matter, Petitioner never provided a copy of his temporary certificate that was issued by the Department on July 7, 2008, to anyone in an effort to be reappointed to teach at George Monroe. In fact, November 15, 2010, the date of the final hearing in this case, was the first time that either Ms. Walker or the School Board was made aware of the fact that Petitioner had been issued a temporary certificate on July 7, 2008.3/ Even if Petitioner had provided George Monroe or the School Board with a copy of his temporary certificate, he still would not have been reappointed to George Monroe for the 2008- 2009 school year. That is, because Petitioner's certification is in social science, not elementary education, and his continued teaching at George Monroe would have been considered out-of-field. In addition, the evidence does not support Petitioner's allegation that he was replaced by a female employee. Although Petitioner was teaching fourth grade at the end of the 2007-2008 school year and was preliminarily assigned to the fifth grade, Petitioner was not guaranteed a position teaching fourth or fifth grade at George Monroe for the next school year. The evidence shows that there were two teachers, one male and one female, moved from the third grade to teach fourth grade, and one new female teacher from another school hired to teach fifth grade at George Monroe. All three teachers had valid professional teaching certificates in elementary education and were qualified to teach in the grades they were assigned at George Monroe. In contrast, Petitioner failed to demonstrate that he was qualified to teach elementary school at George Monroe for the 2008-2009 school year prior to his termination. There was otherwise no evidence submitted by Petitioner indicating that his termination was based on anything other than his failure to submit proof of his qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 19th day of January, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 January, 2011.
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
