The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
The Issue The issue is whether Respondent should be dismissed from his employment as a school teacher for just cause pursuant to Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Background Petitioner is the duly appointed Superintendent for HCSB. He is responsible for the administration and management of the Hernando County School District. HCSB is the governing body of the Hernando County School District. It is charged with the responsibility to operate, control, and supervise all free public schools in Hernando County, Florida. At all times material here, Respondent was, and continues to be, an employee of the HCSB as a member of the instructional staff pursuant to a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with minor students. Apart from the allegations raised in this case, Respondent has been a satisfactory employee. No employee, agent, or representative of the HCSB was aware of any allegations of inappropriate sexual conduct between Respondent and any student until law enforcement officials notified school officials about an investigation a few days before Respondent's arrest. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher. He eventually became the technology resource coordinator at Powell Middle School. Respondent served as director of an after school program (ASP) at Powell Middle School beginning in January 1995. HCSB and the local YMCA sponsored and funded the ASP until sometime in the spring of 1996. Respondent was in large part responsible for the successful creation, organization, and operation of the ASP. The ASP began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after school activities, like swimming lessons, took place on the premises of the YMCA. The ASP participants rode a school bus from the school to activities in remote locations. Respondent directed the ASP initially from his classroom in the science building of Powell Middle School and subsequently from a room used as a computer lab, which was adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the ASP were stored there. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to the cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp, in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. C.B. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. At that time, C.B. was not one of Respondent's regular students. He was a participant in the ASP. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the ASP. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. However, with help from his counselors, and encouragement from Respondent, C.B. stayed at camp for eight weeks. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the ASP. Respondent regularly drove C.B. home following the close of the ASP. Respondent worked one-on-one with C.B. to improve his grades. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B.'s grades improved markedly. Respondent encouraged C.B. to set high school graduation as a goal. C.B. testified that, during the after school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. They traveled in Respondent's pick-up truck and shared the expenses of the trip. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Respondent and C.B. paid their entrance fee and entered the theme park as soon as it opened for business. With so many people around, there was no expectation of privacy in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Families. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. C.B. attended camp at a reduced rate again in the summer of 1996. He went to Vermont early so that he could earn money working at camp before it opened. During the summer, Respondent bought C.B. a portable C.D. player, C.D.'s, and some articles of clothing with the understanding that C.B. would repay Respondent later. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996 for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead High School. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons, as he had for those of other young people. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent that weekend because he was on restrictions at home. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. After a confrontation with his parents, C.B. ran away from home. On September 21, 1996, Respondent went to C.B.'s home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor, and their son and daughter, were close friends of Respondent. The son, Sean O'Connor, was away at college. The daughter, Jennifer, still lived at home. C.B.'s parents agreed to let C.B. live with the O'Connors on a trial basis, provided that C.B. remain on restrictions within the O'Connor home for a period of time. The O'Connors did not live within the Springstead High School district. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Respondent purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his step-brother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996 was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connor residence, then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connor home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On Thursday, October 24, 1996, C.B.'s father decided that he wanted C.B. to move back home. When the father arrived at the O'Connor's home, C.B. attempted to have a heart-to-heart talk with his father. When the father insisted that C.B. return home, C.B. ran out into the yard of the O'Connor home. The father caught up with C.B. and, during the ensuing struggle, repeatedly punched C.B. in the face. The O'Connors called the police. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with the O'Connors' daughter. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with her. Because he would not go home with his stepmother, C.B. was taken to a youth shelter. He ran away from the shelter that night. C.B. continued to attend school while on run away status. On October 29, 1996 and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Families each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father's made his first court appearance, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.3 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct, involving masturbation of Respondent's penis, in Respondent's science classroom or the computer room at Powell Middle School during after school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. A.P. Respondent met A.P., a sixth grade student at Powell Middle School in 1995 as a participant in the ASP. A.P. was a very out-going person, who demanded attention. At times, Respondent, as director of ASP, had to discipline A.P. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during ASP. Respondent frequently gave A.P. a ride home after ASP. Respondent offered A.P. a scholarship to attend Camp Sangamon in the summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the ASP. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley, interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Hernando County School Board enter a Final Order finding Respondent not quilty of improper sexual conduct with C.B. and A.P., and reinstating Respondent to his teaching position, with back pay, less interim earnings, benefits, and no break in seniority of years of continuous service. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998.
The Issue The issue presented herein concerns the Respondent's through the person of his parents appeal of the School Board's assignment (of Respondent) to Youth Opportunity School South - an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated November 8, 1983, Petitioner, the School Board of Dade County, Florida, advised the Respondent, Carlos Alberto Giralt, an eighth grade student attending Glades Junior High School, that he was being administratively assigned to the opportunity school program based on his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Carlos Alberto Giralt, date of birth December 6, 1969, was assigned to Glades Junior High School as an eighth grader during the 1983-84 school year. During October of 1983, Carlos' brother was involved in a physical altercation with another student and Carlos came to his brother's aid by using a stick to physically strike the other student involved in the altercation. Initially, Carlos was given a ten-day suspension and thereafter the suspension was changed to the administrative assignment to the alternative school placement which is the subject of this appeal. 1/ Carlos' father, Salvador Giralt, was summoned to Glades Junior High School and advised of the incident involving Carlos and the other student in the physical altercation. Mr. Giralt was advised of the policy procedures in effect at Glades and was assured that Respondent would be given the least severe penalty, which was the ten-day suspension originally referred to herein. The Giralts are very concerned parents and have voiced the concern by complaining of Respondent's assignment to the Petitioner's area office. In keeping with this concern, the Giralts have requested that their son, Carlos, be reassigned to his original community school, Glades Junior High School. Respondent does not have a history of repeated defiant conduct as relates to School Board authority. According to Petitioner's Assistant Principal at Glades Junior High, Gerald R. Skinner, Respondent was last disciplined approximately two years ago. No showing was made herein that Carlos was either disruptive of the educational process or has failed to adjust to the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the School Board of Dade County enter a Final Order transferring the Respondent to Glades Junior High School or other appropriate regular school program. RECOMMENDED this 24th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1984.
The Issue The issue here is whether the Superintendent has shown "good and sufficient reasons" for recommending that Mr. Udell be returned to annual contract status as a teacher employed by the School Board of Hamilton County, Florida.
Findings Of Fact For fourteen years, Mr. Udell has been employed by the Hamilton County School Board as a teacher. He is presently assigned as an auto-mechanics instructor at Hamilton High School. He has held a continuing contract for the last seven years. The principal of Hamilton High School has been Mr. Maurice Hammond for the last two years. It appears that he is less indulgent of rule violations than was the former school principal, Mr. William Edwards. Mr. Hammond has cracked down on activities such as student card playing which at one time were tolerated by the former administration. This has been at least a partial cause of friction between the old teachers like Mr. Udell and the new principal. It is the school policy that if a student is absent for more than nine days in a nine-week grading period, he will receive a sixty-five or lower grade for that period. With respect to the grade of Tim Holland, a student of Mr. Udell's for the 1979-1980 school year, Mr. Udell did not follow that policy. The policy was known to him through the teachers' handbook which he received at the beginning at the school year. In Mr. Hammond's opinion, Tim Holland would not have graduated if it has not been for Mr. Udell's violation of the nine-day rule. Tim Holland missed a total of seventy-five days of the 1979-1980 academic year. According to Hamilton High School policy, each student must receive nine grades during each nine-week grading period. Mr. Udell has not complied with that policy. During the last complete school year, his students received on the average only three grades. Hamilton High School students who are seniors and have a class grade average of ninety-five or above are exempt from quarter examinations. During the 1979-1980 year, on at least one occasion, Mr. Udell exempted from quarter exams several senior students who had less that a ninety-five average. The teachers of Hamilton High School compute the grades for their assigned students. In the 1979-1980 year, Mr. Udell had one of his students compute grades for him. The result was numerous computation errors, all in favor of the students. For instance, Leonard Phillips had a seventy-four for the first grading period and an eighty for the second period yet he received an average grade of eighty for the whole semester. Jack Alford received a sixty the first period, a sixty-four for the second period and an average of seventy for the semester. For the first semester of 1979-1980 alone, at least sixteen of Mr. Udell's forty-nine students received incorrect grades. Prior to Mr. Hammond's administration at Hamilton High School, there were occasions when students were allowed to play cards during class periods. On April 2, 1979, during a visit to Mr. Udell's classroom, Mr. Hammond observed numerous students playing cards in the third and fourth periods. Halter in the afternoon when the principal spoke with Mr. Udell about the indent, he responded that card playing occurred in other parts of the campus and "the best thing to do was to give me that oil [needed to operate an engine]." This response is typical of Mr. Udell's attitude when deficiencies in his teaching have been pointed out to him. He attempts to rationalize them by shifting repairability onto others. He explained his grading errors by complaining about not having a student assistant or a planning period; yet, with only three grades per student for the whole year, it would take little time for him to accurately compute the grades himself. In one instance, on January 14, 1980, Mr. Udell left an inadequate lessor plan for a substitute teacher. The plan which was for three classes for two periods stated in its entirety (spelling etc. as on original): 1-14-80 Auto Class 1-2 P. Class Basic Tune-up on six cyl. engine Practice on training unit that is on roll cabinit tools are in top drawer in roll cabinit Check training unit with sun scope This is for all classes one group work on engine one on training unit, then change over. Udell A 30-gallon drum of cleaning solvent was sent to Mr. Udell's auto mechanic shop without a purchase order being first submitted. This is contrary to the purchase procedure established at Hamilton High School. It resulted, however, because the salesman sent the solvent before he had Mr. Udell's approval. Mr. Udell was therefore not at fault for there not being a purchase order prior to the delivery of the goods. Evidence was presented which shows that Mr. Udell adequately handles many of the instructional aspects of his teaching responsibilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Hamilton County, Florida, enter a final order pursuant to Section 231.36(4), Florida Statutes, returning Mr. Lawrence Udell to an annual contract of employment as a member of the instructional staff, effective from the beginning of the 1980-1981 school year. DONE AND RECOMMENDED this 7th day of January 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1981.
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
Findings Of Fact The School Board of Leon County, Florida, is an "agency" as defined in Section 128.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle schools located in Leon County, Florida. On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. No action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper. On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981 edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure. This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night. Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries. On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 P.M.. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the Day 26 special emergency meeting were contained in a special section set off from the remainder of the article. At the School Board meeting on Day 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting. At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible. On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Elementary School; and 6Gx37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility." The maps containing the proposed middle school attendance boundaries are Respondent's Exhibits 8(a) Middle School City Map, 8(b) Middle School County Map and 8(c) Middle School Killearn Map. The three middle school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) Middle Schools. By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows: The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate attendance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by, each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection. The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision: (e) Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee. * * * (ii) Middle school students who will be in the eighth grade and elementary students who will be in the fifth grade during the 1981-82 school year shall, upon request, be allowed to remain at the school attended during the 1980-81 school year even though the 1981-82 school attendance zones place them in a new school so long as the parents shall be responsible for all necessary transportation. The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's expressed purpose in rezoning Leon County middle schools for the 1981-82 school year is ". . . to make more effective use of school facilities and to seek greater racial balance among the six middle schools." In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoning process. Current enrollment figures at the middle school level were updated through March 27, 1981. In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique. On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows: * * * That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition. That natural boundaries be used to define attendance areas insofar as it is possible, avoiding duplicate transportation service on individual roadways. That the minority enrollment in any school be not more than 10 percent above or 10 percent below the percent of minority enrollment in that school level in the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools. That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their residence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made for students whose school of attendance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their children continue to attend the school they are attending in 1980-81) That the transportation needed to accomplish the desired racial composition of each school be provided in as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added). There are six middle schools in Leon County: Belle Vue, Cobb, Fairview, Griffin, Nims and Raa. Enrollment figures for the four middle schools, as of March 27, 1981, are as follows: Belle Vue, 668; Cobb, 941; Fairview, 690; Griffin, 769; Nims, 694; and Raa, 1,069. White students attending each of the six middle schools comprise the following percentages of the total student body: Belle Vue, 67.5 percent; Cobb, 76.8 percent; Fairview, 57.27 percent; Griffin, 68.5 percent; Nims, 50.4 percent; and Raa, 80.9 percent. There are so many middle school students currently residing in the Raa attendance area that enrollment at that school has been capped, and 110 students who would have attended Raa are currently attending Cobb. The recommended capacities for the middle schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Belle Vue, 946; Cobb, 938; Fairview, 1110; Griffin, 783; Nims, 888; and Raa, 887. In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations. Among the primary goals of the proposed middle school attendance zone changes were reduction of the number of students attending Raa, due to the large number of students already living in that zone; increasing the number of students attending Belle Vue and Fairview because of their low enrollment in relation to the physical plant capacity of those school facilities; and finally, to improve racial composition at all the middle schools, particularly Fairview, with a view toward compliance with the School Board's plus or minus 10 percent racial composition criteria. Predictions of future enrollments at the various middle schools show that for each year the proposed boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various middle schools, with the exception of Raa, whose total enrollment will, nonetheless be reduced by about 10 percent. In addition, under the proposed zone changes, the racial composition of the student populations at each of the six middle schools is projected to meet or barely exceed the 10 percent criteria established by the School Board by March of 1984. Fairview, Nims and Raa currently do not meet the plus-or-minus 10 percent racial composition criteria. However, according to the School Board's projections, all middle schools should meet or barely exceed the 10 percent criteria during the 1981-82, 1982-83 and 1983-84 school years. The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, the student petitioner in this proceeding who is eligible for grand fathering testified that he would take advantage of that option because of current school activities and friendships. The School Board recognized the importance of making this choice available to middle school students and, in fact, based its decision to allow grandfathering on the desirability of preserving "educational continuity." The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that: Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfathering" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To the extent that a parent voluntarily chooses to assume that responsibility, that parent may incur associated costs such as gas and oil. There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of 367.20, based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing the grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement. The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense. The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk" costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself. Fred H. White, Sr., and his wife, Linda, reside in Leon County with their son, Fred H White, Jr.. Fred, Jr. currently attends Cobb Middle School but under the proposed school attendance boundaries would attend Fairview Middle School. The White residence is located approximately 9.2 miles from Fairview and 5.1 miles from Cobb. The Whites' son is currently eligible for district provided bus transportation to Cobb and would be eligible for such transportation to Fairview. Fred, Jr. is eligible to be grandfathered and both he and his parents testified that they would take advantage of that option. E. Lamar Bailey resides in Leon County, and is the father of Lamar Blair Bailey and Sally Brocke Bailey, both of whom presently live in an area zoned for attendance at Cobb School. Both of the Bailey children would be required to attend Fairview if the proposed rule amendments are adopted. Should the proposed attendance zones be adopted, the Bailey children will be required to travel approximately 14 miles round trip to Fairview, an increase of approximately 3.4 miles over the distance to Cobb. Petitioners Sunshine Land Development, Inc., Elba, Inc. and Falls Chase Special Taxing District were dismissed as parties to this proceeding at the final hearing for failure to allege facts sufficient to demonstrate standing to maintain an action pursuant to Section 120.54, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
The Issue The issues in this case are whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent as an weight training instructor at Hallandale Adult Community School (Hallandale Adult). He taught in that position from August 30, 1993, through November 2, 1993. The summer before, Respondent taught photography in a summer school program at another Broward County school. As a class instructor, one of Respondent's duties was to record the attendance of the students on student attendance rosters or adult student attendance registers which Petitioner maintained as legal documents. In the fall of 1993, Respondent taught two (2) weight training classes for students listed on adult student attendance registers. At all times material to this proceeding, the first class for these students was scheduled to begin at 3:45 p.m. and end at 5:15 p.m. The second class was scheduled to begin at 6:00 p.m. and end at 7:30 p.m. The students listed on these registers were taking weight training for academic credit. They were high school students or adults working towards a General Education Degree (GED). In the fall of 1993, Respondent taught two (2) weight training classes for students listed on adult, vocational, and community education student attendance rosters. At all times material to this proceeding, the first of these classes was scheduled to begin at 3:45 p.m. and end at 5:15 p.m. The second class was scheduled to begin at 6:00 p.m. and end at 7:30 p.m. The students listed on these rosters were adults taking the course for recreational purposes. Respondent recruited these students who paid a fee for the course. The fee supported or justified Respondent's salary for teaching that course. Regardless of whether students were officially enrolled for the first or second class or both classes, Respondent allowed the students to attend the class or classes of their choice. Because of this flexibility in attendance patterns, the undersigned does not find the attendance registers and rosters totally reliable as to the days and times that any student was or was not in his or her scheduled class. In the fall of 1993, S. G., then an eleventh grade student at Hallandale High School (Hallandale High), signed up for biology and weight training classes at Hallandale Adult. The attendance register indicates that she attended Respondent's class on October 12, 14, 19, 21, 26, and 28, 1993. She was scheduled to attend weight training classes on Tuesdays and Thursdays from 6:00 p.m. to 7:30 p.m. However, she sometimes attended the first class depending on whether she attended her biology class. Respondent performed two skin fold tests on S. G. in the fall of 1993 to determine the amount of fat in her body. On one of those occasions, she was alone with Respondent in the weight room. At that time, Respondent touched her inappropriately near her vaginal area while performing the test on her lower abdomen and buttocks. She did not immediately tell anyone that either of the tests made her feel uncomfortable because she felt Respondent's actions were part of the test and she trusted him. After Respondent performed the offensive skin fold test, S. G. claims she discussed the test with another student, Lydia (last name unknown). S. G. stated that Lydia was in her biology class and sometimes attended Respondent's classes even though she was not enrolled. She described Lydia as being 5'8'' with long hair pulled up in a pony tail and Hispanic with dark skin. According to S. G., Lydia claimed that Respondent also performed a skin fold test on Lydia and made her feel uncomfortable. Lydia did not testify at the hearing nor did any witness testifying, other than S. G., remember Lydia ever being present in the weight training classes. Under these facts, the undersigned finds that S. G.'s testimony concerning any conversation with Lydia is uncorroborated heresay and therefore insufficient in itself to support a finding of fact. At the hearing, Respondent denied performing a skin fold test on S. G. However, the undersigned finds S. G.'s testimony in this regard more persuasive than Respondent's testimony. In the fall of 1993, N. A. G., then a twenty-five (25) year old female adult, signed up for a G.E.D. course and Respondent's weight training class at Hallandale Adult. She attended Respondent's classes on September 13, 14, 15, and 21, 1993. She was scheduled to attend class from 6:00 p.m. to 7:30 p.m. On the last day N. A. G. attended Respondent's class, he asked to perform a skin fold test on her after the first class ended at 6:00 p.m. N. A. G. was familiar with the test, which is usually performed on women by another woman because she had experience as an aerobics instructor. When N. A. G. agreed to permit the test, Respondent asked Jason Forentes, N. A. G's nephew, to step out of the weight room. No other students were present during the test. Respondent first tested N. A. G.'s underarms, back and chest. Next, Respondent asked N. A. G. to take off her leotards so he could perform the test on her legs. N. A. G. went into the bathroom, took off her tights, and put her shorts and shirt back on. While Respondent was performing the test on the front of N. A. G.'s legs, she complained that Respondent was performing the test too high. Respondent explained that testing the legs in this manner "was a new thing." When N. A. G. felt Respondent's touch against her front vaginal area, she objected again. Respondent told her to turn around so he could test her legs in the back. N. A. G. turned around and Respondent sat in a chair. Once again Respondent performed the test so high on N. A. G.'s legs that she felt him touching her vaginal area. At that point, she told him to "forget it." She went back into the bathroom to put her leotards on under her shorts. When N. A. G. returned from the bathroom, she was very nervous. Respondent wanted to know if she would be coming back to class. He stated that he wanted to buy her a bathing suit and take pictures of her. N. A. G. never returned to Respondent's classes. She did not immediately tell anyone about the incident because she had trusted Respondent and was embarrassed. Respondent performed the skin fold test on N. A. G. in an unwarranted and inappropriate manner. Respondent admits that he performed a skin fold test on N. A. G. at Hallandale Adult. However, he denies touching her inappropriately. The undersigned does not find Respondent's testimony persuasive to the extent it conflicts with the testimony of N. A. G. There is no persuasive record evidence that S. G. and N. A. G. ever met each other before the hearing or that they ever discussed their testimony concerning the skin fold tests with each other. Additionally, there is no persuasive record evidence that S. G. ever knew N. A. G. as Lydia. Sometime prior to October 28, 1993, S. G. told Respondent and other people in the class that she wanted to have some pictures taken in order to get a job modeling at the local flea market. Respondent told S. G. he would take the pictures between classes on October 28, 1993 and directed her to bring some clothes, including a bathing suit, to class. When S. G. showed up for the photography session, Respondent had two cameras, a .35 millimeter. and a 110 camera. No one else was present in the weight room. When Respondent first took pictures of S. G. in her bathing suit, he adjusted the top of her two piece suit to make her chest look big. He also adjusted the bottom of the suit to make the sides higher. Respondent's behavior was unwarranted and made S. G. feel uncomfortable. Respondent next took pictures of S. G. in a sundress. Eventually Respondent told S. G. to change back into her bathing suit. He told S. G. to go into the interior office and lay down on a towel he had placed on the floor. After taking some pictures, Respondent told S. G. that her pubic hair was showing on the sides at the bottom of her suit. Respondent put his hand underneath S. G.'s suit and touched her near her vaginal area making her feel very uncomfortable. When S. G. pulled back, Respondent asked if he was hurting her. Respondent then told S. G. "I'm a photographer, I don't think like that. You don't have to tell your friends, you don't have to tell your parents." Respondent's denial of this unwarranted, inappropriate conduct is contrary to S. G.'s more persuasive testimony. While S. G. changed her clothes, Respondent opened the door for the second period students to come into the weight area. D. S., then an eleventh grade student at Miramar High School, enrolled for both of Respondent's classes in the fall of 1993. Depending on his work schedule, D. S. attended one or both of the classes. On October 28, 1993, D. S. attended the first class. After the break between the classes, D. S. went back into the classroom to tell Respondent that he would not stay for the second class because he had to pick up his paycheck at Publix. When D. S. came into the classroom, S. G. asked him how he got to school. D. S. told S. G. that he drove his car. S. G. then asked D. S. if he would give her a ride to her boyfriend's place of employment. D. S. agreed to give S. G. a ride. On the way to the parking lot, S. G. repeatedly told D. S. that Respondent had taken the pictures of her for her portfolio and had touched her in the wrong way. S. G. was very upset. D. S. went back into the classroom with S. G. to get her book bag. S. G.'s boyfriend was not at work on the evening of October 28, 1993. S. G. told him about the incident on Friday, October 29, 1993. She told her mother on Saturday, October 30, 1993. On Monday, November 1, 1993, the incident was reported to the school resource officer at Hallandale High. Kathleen Doody, Assistant Principal at Hallandale Adult, became aware of allegations concerning Respondent's inappropriate behavior towards S. G. on November 2, 1993. She met with Respondent and a Hallandale police officer in her office at about 3:15 p.m. During the meeting, Respondent stated that he had been to dinner with Frank Gaines, another adult student, during the break between classes on October 28, 1993. Respondent was visibly shaken during this meeting and denied all allegations. On November 3, 1993, Mr. Kent (the Principal), Ms. Doody, and Respondent met again. At that time, the school was aware of allegations made by a second student. Mr. Kent told Respondent he was being removed from his position as weight training instructor. Frank Gaines, a teacher at another Broward County school, attended Respondent's classes from the beginning of September through October of 1993, depending on his work schedule. On Mondays and Wednesdays, Mr. Gaines usually attended Respondent's first class then left to teach his own class at another school. Mr. Gaines usually attended both of Respondent's classes on Tuesdays and Thursdays. On the days that Mr. Gaines attended both classes, he normally ate dinner with Respondent between the classes. However, on Thursday, October 28, 1993, Mr. Gaines departed from his normal routine and left before 5:00 p.m. in order to teach a class at another school. Johnny Thornton, an adult working towards his G.E.D., attended Respondent's classes in the fall of 1993. The attendance register indicates that he attended Respondent's 6:00 p.m. to 7:30 p.m. class beginning September 1, 1993 and that he withdrew from that class on September 27, 1993, in order to transfer to another class. The class registers and rosters do not reflect which class Mr. Thornton transferred into. Regardless of what the attendance records show, it is evident from Mr. Thornton's testimony and the testimony of other witnesses that Mr. Thornton frequently attended one or both of the classes. Mr. Thornton could not remember whether he was present in class on October 28, 1993, but stated that Respondent never was alone with a student during the break between classes. He does remember being present when the police came to question Respondent on November 2, 1993. The undersigned does not find Mr. Thornton's testimony persuasive because of his inability to remember people's names, dates, and times. Jenny Casillas, an adult, was scheduled to attend Respondent's 6:00 p.m. to 7:30 p.m. class on Tuesdays and Thursdays beginning on September 9, 1993, through October 26, 1993. Respondent marked Ms. Casillas absent on October 28, 1993. Ms. Casillas testified that some days before October 28, 1993, S. G. asked Respondent if he knew anybody who could take some pictures of her. According to Ms. Casillas, Respondent told S. G. that he did. Respondent's testimony that S. G. first inquired about someone who could take pictures of her on October 28, 1993, is less persuasive than the testimony of Ms. Casillas and S. G. that the conversation took place prior to October 28, 1993. Ms. Casillas testified that she called Respondent on October 28, 1993, around 4:15 p.m. to tell him she would be late. She also testified that she arrived in class at 4:45 p.m. According to Ms. Casillas, October 28, 1993, was the day she asked Respondent to give her a diet plan to help her gain weight. She claims she was the last one to leave with Respondent after the first class ended at 5:25 p.m. At the hearing, Respondent testified before Ms. Casillas gave her testimony. Respondent claims he left the classroom on October 28, 1993, in the company of Ms. Casillas, Mr. Thornton, and a few other students, and that he was never alone with any student. Respondent's testimony contradicts Ms. Casillas's testimony that she was alone with Respondent as they left the classroom on October 28, 1995. Respondent and Ms. Casillas testified that after leaving the classroom on October 28, 1993, she and Respondent sat on a patio for about ten (10) minutes while he wrote out a diet plan. Their testimony that Ms. Casillas was late but attended the first class on October 28, 1993, and was with Respondent until approximately 5:53 p.m. is contrary to S. G.'s more persuasive testimony. On November 2, 1993, Ms. Casillas warned Respondent that he should be careful because S. G. was trying to get a lot of attention by raising her hand and asking for a lot of help. Ms. Casillas's testimony that she felt S. G. had a crush on Respondent is unpersuasive. Respondent's brother, Michael Singleton, was S. G.'s classmate in the fall of 1993 at Hallandale High. He testified that one day in the fall of 1993, S. G. told him Respondent was "fine" and wanted Respondent's telephone number. Respondent's brother claims he told S. G. to get the phone number herself. The testimony of Michael Singleton is contrary to S. G.'s more persuasive testimony. S. G. admits that one day in weight training class, she told Respondent that his brother was "mean." She was not serious when she made this statement. She said it because of the way Respondent's brother "played around" and she said it just "to joke around." The testimony of Ms. Casillas and Respondent's brother is rejected to the extent their testimony attempts to establish a motive for S. G. fabricating the facts of the photography session. 43. On November 1, 1993, George L. Davis, a detective from the Hallandale Police Department, began an investigation into the allegations against Respondent. He interviewed N. A. G. on or before November 3, 1993. Prior to that time, N. A. G. had not discussed her concern over the improper skin fold test with anyone. During the hearing, Respondent attempted to demonstrate the proper way to administer a skin fold test. However, this demonstration does not change the fact that Respondent administered the tests to S. G. and N. A. G. improperly and in the process, inappropriately touched both students.
Recommendation Based and the foregoing findings of fact and conclusions of law, the undersigned RECOMMENDS that Petitioner enter a Final Order dismissing Respondent from his employment as an instructor in the public schools of Broward County. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of April, 1995. SUZANNE F. HOOD, Hearing Officer 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 13th day of April, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of facts submitted by the parties to this case. Petitioner's Proposed Findings of Facts 1.-2. Accepted in paragraph 6. 3.-4. Accepted in paragraph 7. 5.-6. Accepted in paragraph 18-20. Accepted in paragraph 22. Accepted in paragraphs 18, 19, & 23. Accepted in paragraphs 24-26. Accepted in paragraph 27. Accepted in paragraph 17. Accepted in paragraph 10. 13.-14. Accepted but irrelevant and immaterial. 15. Accepted in paragraph 10. 16.-18. Accepted in paragraph 11. Accepted in paragraph 12. Accepted in paragraph 13-14. 21.-23. Accepted in paragraph 15. 24. Accepted in paragraph 17. 25.-29. Accepted in paragraphs 24-26. Accepted in paragraphs 28. Accepted in paragraph 6. Accepted in paragraph 2 but see paragraphs 3-5. Accepted to the extent necessary in paragraph 10. Accepted as modified in paragraphs 3-4. Accepted in paragraph 34. 36.-37. Accepted in paragraph 28. Accepted as to the substance of Kathleen Doody's testimony, but not included in findings of fact to the extent it constitutes conclusions of law. See paragraphs 7, 15, 20, & 22. Accepted in paragraph 34. 40.-43. Accepted as to the substance of Ronald Wright's expert testimony. Not included in findings of facts to the extent his testimony constitutes conclusions of law. See paragraphs 7, 15, 20, & 22. 44.-49. Accepted in paragraphs 35-38. Respondent's Proposed Findings of Fact Respondent did not number his proposed findings of fact. Consequently, the undersigned has numbered Respondent's paragraphs in order to specifically address each proposed fact. 1. Accept the substance of Kathleen Doody's testimony. See paragraphs 28- Irrelevant whether Respondent knew S. G. before she enrolled in his class. Accept that S. G. testified concerning an alleged conversation with another student named "Lydia" (last name unknown) who was not identified as N. A. G. Reject any finding of fact based on S. G.'s unpersuasive and uncorroborated testimony concerning the substance of that conversation with "Lydia." See paragraph 8. Accept that George Davis interviewed N. A. G. on or before November 3, 1993. See paragraph 43. S. G. testified that she talked to another student, Lydia (last name unknown), and gave a description of her. See paragraph 8. Reject any finding of fact based on S. G.'s unpersuasive and uncorroborated testimony concerning the substance of that alleged conversation with "Lydia." See paragraph 8. Accept that N. A. G. and S. G. never knew each other before the hearing. See paragraph 17. Accept that on November 2, 1993, Jennie Casillas warned Respondent about S. G. trying to get a lot of attention from Respondent. However, Ms. Casillas's testimony that she felt S. G. had a crush on Respondent is unpersuasive and rejected. See paragraph 39. Rejected. See paragraph 40. Rejected. See paragraph 38. S. G. admitted telling Respondent that his brother was "mean." See paragraph 41. S. G. and Michael Singleton knew each other as former classmates. See paragraph 40. Reject Respondent's testimony that he never inappropriately touched either S. G. or N. A. G. and that he never took pictures of S. G. See paragraphs 9, 16, 28, 37, 38. Reject that the mechanics of performing the skin fold test shows the impossibility of Respondent using his fingers in the manner alleged by S. G. and N. A. G. The balance of Respondent's paragraph 6 is rejected as repetitive, argumentative, irrelevant or unsupported by persuasive competent substantial evidence. Not a finding of fact. COPIES FURNISHED: Eugene K Pettis, Esquire Cooney, Haliczer, Mattson, Lance, et al. Post Office Box 14546 Fort Lauderdale, Florida 33302 W. George Allen, Esquire Law Offices of W. George Allen Post Office Box 14738 Fort Lauderdale, Florida 33302 Dr. Frank R. Petruzielo Superintendent of Schools Broward County Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
