The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 23rd day of December, 2014.
The Issue Whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. In 2010, Whitley started working for the School Board as a school security monitor. During the 2016-2017 school year, Whitley was assigned to Thomas Jefferson Middle School (“Thomas Jefferson”) as a security monitor. He remains employed in that role at Thomas Jefferson presently. Whitley’s job duties and responsibilities include, but are not limited to, maintaining the safety of the children, ensuring the children make it to class on time, assisting with any problems that may be going on in the school, and monitoring the security cameras. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a continuing contract. The incident giving rise to this proceeding occurred on February 6, 2017. On February 6, 2017, Whitley was patrolling his assigned hall and noticed that M.G., a 13-year-old sixth grader, was out of class and sitting at Respondent’s desk in the hallway. Whitley requested that M.G. get out of the chair, and M.G. refused to get out of the desk. According to M.G., after M.G. refused, Whitley flipped the desk while he was seated, which caused M.G. to fall and hit his head on the floor. There is conflicting evidence as to what happened when Whitley approached the desk (“incident”). At hearing, M.G. credibly testified that he reported the incident to Principal Robin Atkins the same day and that he also got an ice pack for his head. Almost a month later, the Office of Professional Standards opened an investigation regarding the incident. Afterward, Respondent was notified that M.G. accused him of flipping the desk that he was sitting in and causing him to hit his head as a result. In 2017, law enforcement interviewed Respondent. The matter was ultimately turned over to the School Board's General Investigative Unit (“GIU”). The investigation took approximately two years to conclude. Even though Thomas Jefferson maintained security footage and recorded videos of the hallway where the incident occurred, no video footage existed for anyone to review regarding the incident. Based on its investigation, on or about May 30, 2019, GIU determined that there was probable cause to support the allegation that Respondent had violated School Board Policy 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare. Respondent learned about the determination soon thereafter. After summer break, when Respondent returned to work, on or about August 27, 2019, Carlos Diaz, the district director of the School Board's Office of Professional Standards conducted a conference-for-the-record (“CFR”) meeting to discuss the pending allegations from the GIU case. Respondent was present at the CFR with his union representative. Following the CFR, the Disciplinary Review Team (“DRT”) met. DRT considered Respondent’s repeated and similar conduct for inappropriate contact with students and Respondent’s prior directives in its decision to discipline Respondent. DRT recommended that Respondent be terminated. The recommendation was adopted by the School Board. Prior Disciplinary History During his employment with the School Board, Whitley has been disciplined twice regarding inappropriate touching of students prior to the incident. The School Board kept a record of Respondent’s discipline in Whitley’s personnel file. On or about April 16, 2013, Whitley received a written reprimand after an investigation concluded that he shoved and touched a student’s shoulder repeatedly. Whitley’s reprimand directed Respondent to “[r]efrain from any physical touching of students.” In November 2013, Whitley was suspended for 12 workdays without pay after an investigation concluded that Respondent inappropriately picked up and dropped a student to the ground. The CFR memorandum regarding Respondent’s November 2013 occurrence directed Whitley to: “adhere to School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare”; “refrain from inappropriate communications with students”; and “refrain from inappropriate physical contact with students.” Hearing At the final hearing, M.G. provided persuasive credible testimony regarding the incident. He testified that he was sitting in Whitley’s chair in the hall. M.G. also admitted that he refused to move and told Respondent “no” when told to move. Whitley testified that M.G. “jumped” out of the chair. The undersigned does not credit Whitley’s testimony based on his contradictory statements about the incident, which diminish the trustworthiness of his testimony.1 Findings of Ultimate Fact Accordingly, the undersigned finds that M.G.’s credible testimony established that Whitley initiated contact with M.G., grabbed the desk to lean in, and flipped M.G., who was seated, out of the desk. As a result of Whitley’s actions, M.G. landed in a manner where his “hand hit the ground,” head hit the concrete floor, and, by doing so, jeopardized M.G.’s health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: finding Respondent in violation of rules 6A-5.056(2) and (4), 6A-10.081, and School Board Policies 4210, 4210.01, and 4213 as charged; and upholding Respondent's termination from employment for just cause. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether the Education Practices Commission should deny Petitioner's application for a teaching certificate on the grounds that Petitioner lacks the requisite good moral character and that he has committed an act or acts for which such a certificate could be revoked.
Findings Of Fact The evidence presented at final hearing established the facts that follow. During the 1999-2000 school year, Rolle was employed as a public school teacher in the Miami-Dade County School District (the "District"). He was assigned to Mays Middle School, where he taught drama to sixth, seventh, and eighth grade students. Holding a temporary Florida Educator's Certificate, Rolle was hired initially to work as a substitute teacher. Later during the 1999-2000 school year, Rolle's contract status was reclassified, and he became a "3100" or "temporary" teacher. A 3100 teacher's contract automatically expires at the end of the school year. Before the close of the subject school year, Rolle was removed from the classroom after allegations of misconduct were made against him. When the school year ended, Rolle's supervisor gave him an unsatisfactory evaluation and recommended that the temporary teacher not be re-hired. Consequently, Rolle separated from employment with the District following the 1999- 2000 school year. In the meantime, Rolle applied to the Department of Education for a professional (i.e. non-temporary) teaching certificate, pursuant to Section 231.17, Florida Statutes. On March 28, 2001, the Commissioner, as the head of the Department of Education, issued a Notice of Reasons setting forth the grounds for denying Rolle's application. In a nutshell, the Commissioner alleged that Rolle lacked the good moral character required of a teacher and that he had violated the Principles of Professional Conduct for the Education Profession. Below are the relevant historical facts concerning the specific incidents upon which the preliminary denial of Rolle's application was based.2 The Vulgar Joke On March 17, 2000, Rolle told a vulgar joke to his sixth grade class. One of his students, an 11-year-old girl named D. M., reported the joke to the school's administration, submitting a handwritten statement dated March 23, 2000, that quoted Rolle's monologue.3 Rolle admits having told the joke; indeed, he repeated it in full while testifying at hearing. Therefore, no useful purpose would be served by including the entire joke in this Recommended Order. The punch line——"Your mouth smells exactly like your butt"——is sufficient to convey the crudity of Rolle's ill-considered attempt at comedy, which would have been inappropriate in polite adult company. Telling such a coarse joke in the classroom to a group of young schoolchildren at a minimum reflected appallingly poor judgment on the teacher's part. The R-Rated Movies On several occasions during the school year, Rolle showed movies to his sixth and seventh grade classes.4 At least two of the movies, Rolle admitted, are rated "R." Another, Rolle claimed, is rated "PG-13."5 Rolle did not obtain the permission of his students' parents to show the children any of these films in class. While the movies themselves were not offered into evidence, it is a matter of general knowledge based on common experience that R-rated movies are intended for a "restricted" audience and typically contain language, images, and plots to which children under the age of 17 should not be casually exposed. At any rate, clearly, children aged 11 and 12 should not be shown R-rated movies in a public school classroom without parental knowledge and consent. Rolle showed these movies, not for a pedagogic purpose, but merely to entertain the children. Making matters worse, Rolle instructed his students to have sheets of paper on their desks while a videotape was playing so that they could pretend to be "critiquing" the movie if someone (presumably another teacher) were to enter the classroom. Rolle also directed the children not to tell others that R-rated films were being screened in his class, warning the students that if word got out, then someone might complain, with the predictable result that the school's administration would forbid such movies from being shown in the future. The Impromptu Skits In class, Rolle often required small groups of his students to act in impromptu skits as a means of developing improvisational skills. Rolle would describe a scene in broad terms, and the students selected to perform would play assigned parts, making up appropriate dialogue extemporaneously. The plots for some of these impromptu skits were taken from the students' textbooks. But Rolle required the students to act out some other scenes that he had imagined on his own. Several of these skits were highly inappropriate, to say the least. In the sixth grade class, for example, Rolle assigned children to play in a scene involving a lesbian having an affair with her female boss at work; a skit in which a girl describes losing her virginity and becoming pregnant; and a vignette wherein a girl who has been raped reports the crime to her parents and the police. Students not chosen to perform in these skits were obligated to watch them. D. M., the young girl who reported the gauche joke discussed above, was one of the sixth-grade students chosen to play a lesbian. She refused the assignment, whereupon Rolle threatened her with a failing grade. Rolle also instructed his seventh grade students to perform in impromptu skits having adult themes.6 More than once, the plot required these adolescent (or pre-adolescent) children, aged 12 and 13, to explore the subject of homosexual relationships. On one occasion, according to the credible testimony of a (then) seventh-grade student named M. M., Rolle suggested that two girls kiss. One of the girls refused. M. M. described a separate incident during which she and another girl, playing lesbians in an impromptu skit under Rolle's direction, actually did kiss one another, although M. M. professed not to have been adversely affected by the experience. Rolle's Explanations Rolle conceded that he had exercised "bad judgment" in connection with the incidents described above and stressed that he had been "reprimanded" by the District for them. Rolle admitted that he had believed his actions were appropriate at the time taken, but upon reflection he now recognizes that he made what he calls "first year teacher" mistakes. Rolle adamantly denied having intended to harm or embarrass any student. Ultimate Factual Determinations Rolle's classroom conduct during the 1999-2000 school year repeatedly fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable measure, it is wrong for a teacher to show R-rated movies to impressionable sixth and seventh grade students; when that teacher, an authority figure acting in loco parentis, further instructs the students to be prepared to lie about or conceal the fact that such films are being shown, as Rolle did, he not only exhibits a propensity for dishonesty that is incompatible with the position of great trust he holds but also encourages the children in his charge likewise to be deceitful. Similarly, when Rolle told that scatological joke to his sixth grade class, he revealed a lack of respect for the rights of others and behaved in a manner inconsistent with the high standard expected of a public school teacher. Finally, asking children as young as 11 years old to act out or watch scenes in which lesbians discuss an illicit workplace romance; a rape victim describes her trauma; and a pregnant girl speaks about her first sexual experience, as Rolle did, reveals a personality that is preoccupied with subjects unsuitable for the middle school curriculum. If Rolle were soon permitted to teach again, parents understandably would question their children's safety and well-being. The risk of allowing Rolle to return to the classroom, at this juncture, is too great. The conduct in which Rolle engaged, moreover, took place in the classroom during the 1999-2000 school year and directly involved the students in his care. Thus, the conduct involved in this case is both recent and rationally connected to Rolle's fitness to teach in the public schools of Florida. In sum, the evidence fails to establish that, more likely than not, Rolle possesses the good moral character required of a teacher to whom the custody of children is entrusted. For that reason, Rolle is not eligible for certification. There is, further, ample proof that Rolle failed on numerous occasions to exert a reasonable effort to protect students from conditions harmful to learning, health, or safety as required under Rule 6B-1.006(3)(a), Florida Administrative Code, which is part of the Principles of Professional Conduct. Rolle's multiple violations of this Rule would be grounds for revocation of a teaching certificate and hence independently justify the denial of his application for one. Finally, the greater weight of evidence does not demonstrate that Rolle specifically intended to expose his students to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Rolle's application for a teaching certificate and providing that he shall not be eligible to reapply for certification for a period of 15 years from the date of the final order, during which time the Department of Education, in its discretion pursuant to Section 231.262(6)(a), Florida Statutes, may refuse to consider his application, neither granting nor denying same. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 December, 2001.
The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. STUART M. LERNER, 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 25th day of April, 1996.
The Issue The issue in this case is whether a convicted felon should be dismissed from her position as a public school teacher for having committed a criminal act.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. When this proceeding began, Respondent Shaneen Singleton ("Singleton") was a fifth-year teacher in Miami, where she taught second grade. From 2002 until she was suspended in January 2007, Singleton was assigned to Edison Park Elementary, which is a public school within the School Board's jurisdiction. Singleton was born in 1974, the second oldest of ten siblings. She grew up near downtown Miami in Overtown, a dangerous inner-city neighborhood plagued by poverty and crime. In Singleton's words: "Of course . . . you have the fighting, the shootings, a lot of things going on [in Overtown]." As a child, Singleton met Tashimba Andrews, who has been a lifelong friend. When they were teenagers, Ms. Andrews and Singleton participated in a government program for children whose parents were receiving public assistance. Through this program, Ms. Andrews and Singleton were employed, for several summers, as day care providers, giving them an opportunity to do "teacher like things" with children. From this experience, the two developed a love for teaching. After high school graduation, Singleton and Ms. Andrews went to college together. Soon, however, their paths diverged. Singleton became pregnant, dropped out of college, and had a baby. Ms. Andrews continued with her education, eventually earning a bachelor's degree in elementary education, a master's degree in exceptional student education, and a specialist's degree in educational leadership. She would become, in time, a teacher in the Miami-Dade County Public School System. As of the final hearing, Ms. Andrew was in her second year as an assistant principal at Miami Edison Senior High School. After quitting college, Singleton returned to Overtown and landed a part-time job. Needing a place of her own, Singleton applied for public housing assistance. She was accepted to receive aid under the "Section 8" program, which subsidizes the costs of housing for low-income families. And so, as of 1995, Singleton, age 19, was a single mother living in Section 8 housing in Overtown, having no formal education beyond high school. During the next several years, Ms. Andrews (Singleton's childhood friend) goaded Singleton into pursuing a college degree. At some point, Ms. Andrews even assumed substantial responsibility for rearing Singleton's son, whom she took into her own home, so that Singleton could concentrate on her studies. Singleton eventually earned a two-year degree from the local community college. With that, she was able to work as a paraprofessional and substitute teacher. Ms. Andrews continued to push Singleton, urging her to get a bachelor's degree. Singleton rose to the challenge, attending, first, Florida International University and, later, Nova Southeastern University, which latter institution awarded her a bachelor's degree in 2002. Thereafter, she attended graduate school and received a master's degree in reading education. At the time of the hearing, Singleton expected to graduate in July 2007 with a specialist's degree in math. Sometime before graduating from Nova and taking her first full-time teaching position in the Miami-Dade County Public Schools, which events took place in 2002, Singleton gave birth to her second child, got married, and moved out of her subsidized apartment, to live with her husband. Before vacating her apartment, however, Singleton allowed her unemployed younger sister——who had no place else to go——to move in with her. When Singleton left, the sister stayed. The sister remained in the Section 8 apartment for at least the next couple of years, during which time Singleton signed the lease for "her" apartment——as if she were still a tenant——even though, in fact, she no longer lived there. As a result, the federal government paid a rental subsidy to Singleton's former landlord, which actually benefited Singleton's sister, rather than Singleton. Singleton testified at hearing that, in signing the lease which allowed her sister to benefit from the Section 8 rental subsidy meant for Singleton, she did not intend to commit a crime. Ms. Andrews corroborated this testimony, asserting her belief, as a confidant of Singleton's, that Singleton had not intended to defraud the government. Elaborating, Ms. Andrews testified: "[Singleton's] family depends on her a lot, and I think that many times she's put in circumstances that could —— that I just —— morally, she was asked to do something to help a family member, and it inadvertently affected her." The undersigned accepts the foregoing evidence——which was not rebutted——and finds that, more likely than not, Singleton's action(s) in furtherance of securing a Section 8 rental subsidy for her sister's benefit were not the product of a criminal or fraudulent intent. Rather, Singleton——who did not stand to gain personally——was motivated by the desire or need to provide her sister with someplace to live.1 That said, the undersigned does not find that Singleton had no idea that what she did was wrong. To the contrary, she must have known that obtaining a rental subsidy, in her own name, for an apartment that she no longer occupied—— even for the good purpose of providing shelter for her sister—— was improper. Singleton had no legal excuse or justification for her misdeed, which involved conduct that was contrary to societal expectations regarding socially acceptable behavior, as such are expressed through positive law. In June 2006, Singleton was arrested pursuant to a federal indictment that charged her with 46 counts of violating Title 18, U.S. Code, Section 641.2 This crime, which entails theft or conversion of public property, is defined as follows: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both. The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater. 18 U.S.C. § 641 (emphasis added)(hereafter, "Criminal Conversion").3 Singleton immediately informed her principal, Veronica Swindell-Wesley, that she had been arrested, although she did not provide Ms. Swindell-Wesley with details regarding the nature of the charges. In July 2006, Singleton entered into a Plea Agreement with the United States whereby she agreed to plead guilty to a single count of the indictment in exchange for the government's promise to seek dismissal of the remaining 45 counts. In August 2006, Singleton returned to the classroom after the summer break. Ms. Swindell-Wesley allowed Singleton to continue teaching, despite the pendency of the criminal case, and even assigned her new duties, naming her the reading instructor. On September 15, 2006, the federal court accepted the Singleton's plea, adjudicated her guilty of one act of Criminal Conversion, and dismissed all of the remaining charges. (Parenthetically, none of the allegations made against Singleton in the 45 counts that were dismissed was ever proved——and mere allegations, which could not support a criminal conviction, obviously cannot support an adverse employment decision based on a criminal conviction. It is a point worth emphasizing, therefore, that Singleton was convicted only for one isolated bad act, not the continuing series of bad acts which the government originally charged Singleton with perpetrating but ultimately never proved. Indeed, for the purposes of this case, Singleton is presumed innocent of the crimes alleged in the dismissed counts, just as any person accused of a crime would be deemed innocent unless and until guilt were established by proof beyond a reasonable doubt.) Singleton was sentenced to one year of probation, ordered to make restitution to the government in the amount of $1,036, and fined $15,000.4 Singleton paid the restitution immediately, and the court terminated her probation. As of the hearing, she was paying the fine at the rate of $50 per month. Following Singleton's conviction, the school district's investigative and disciplinary personnel took immediate action. In short order, a conference-for-the-record ("CFR") was scheduled to discuss Singleton's future as a teacher. The CFR was held on October 26, 2006. Before the meeting, Ms. Swindell-Wesley wrote a letter of support for Singleton. Dated October 26, 2006, the letter provides as follows: To Whom it May Concern: This is a letter of support for Shaneen Singleton, Teacher at Edison Park Elementary School. I have supervised Ms. Singleton for the past two and [a] half years, and I must admit that I am impressed with her commitment, professionalism, and abilities to do her job. Ms. Singleton is currently working as a Reading Teacher at Edison Park Elementary. She is an enthusiastic employee who is always encouraging, nurturing of all students and supportive of staff here at our school. Ms. Singleton is also very astute where students are concerned and demonstrates sharp leadership skills. She is also proactive and takes responsibility for the work of the school. She has always demonstrated high morals and character while at work. Ms. Singleton regularly confers with the Leadership Team about the curriculum in our school to assist the Administration with compliance of district trends and initiatives. Ms. Singleton consistently exhibits her dedication to the Edison Park family by participating on several school-wide committees. These committees include, Honor Roll, Black History, Spanish Heritage, Safety Patrol, Haitian Flag, Leadership Team, Teacher of the Year, Grade Level Chair and Literacy Team. She is an excellent employee and is an asset to the enhancement of student achievement in Miami-Dade County Schools. Singleton submitted Ms. Swindell-Wesley's letter, together with four other such letters of recommendation, into the record at the CFR (according to the summary of the meeting, which is in evidence).5 After the CFR, it was Ms. Swindell-Wesley's duty to make a recommendation concerning the disciplinary action to be taken, if any, against Singleton. In a memorandum dated October 26, 2006, Ms. Swindell-Wesley urged that Singleton be fired, writing: Based on Records Check #L-26145, Ms. Shaneen Singleton confirmed that she was arrested and pleaded guilty for Theft of Public Monies. Although Ms. Singleton has exhibited excellent teaching qualities, this does not excuse the commission and conviction of a crime involving moral turpitude. Based on the information presented at the Conference for the Record, a review of the record, and the United States District Court Southern District of Florida Indictment, it is my recommendation that Ms. Singleton be dismissed from employment with Miami-Dade County Public Schools. At the time she prepared this memorandum, Ms. Swindell-Wesley believed she had no choice but to recommend Singleton's dismissal, based on the nature of the crime she had committed.6 In due course, the recommendation was made to the School Board that Singleton's employment be terminated. At its regular meeting on January 17, 2007, the School Board voted in favor of suspending Singleton without pay pending termination of employment. The facts and circumstances surrounding Singleton's arrest and conviction were not publicized in the media nor discussed by the staff or students at Edison Park Elementary. Indeed, there is no evidence that the facts concerning her offense were known beyond the small circle of people directly and immediately involved. There is likewise no evidence of any parental complaints stemming from Singleton's conviction. Nor is there any evidence, one way or the other, as to whether the knowing conversion of a housing voucher is considered a very serious and morally wrong offense in the community where Singleton was teaching. There is, however, persuasive, credible evidence——and it is found——that Singleton's job performance did not suffer at all, either after her arrest or subsequent conviction. Singleton, in fact, retained her effectiveness as a teacher, despite the criminal act that caused her to be prosecuted and punished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (1) finding Singleton not guilty of the charges brought against her and (2) imposing an appropriate punishment, besides dismissal, consistent with the principle of progressive discipline, in consequence of her criminal conviction. DONE AND ENTERED this 21st day of June, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of June, 2007.
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, 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 25th day of April, 2017.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
