The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held Florida Educator Certificate 477777, covering Physical Education and Social Sciences. Respondent’s certificate is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed by the Palm Beach County School Board and assigned to a classroom at BRHS, where he taught psychology and history. In recent years, Respondent has taught advanced placement classes. The evidence established that Respondent is well-liked by students, parents, and faculty. The present principal of BRHS, who was not at the school during the 1985-86 or 2001-2002 school years, considers Respondent to be an asset to the school. FACTS PERTAINING TO K.P. AND B.K. Prior to the end of the 1985-86 school year, Respondent invited several female senior students to join him for dinner in celebration of their upcoming graduation. Respondent was 33 years old at that time. Each of these females was either 17 or 18-years-of-age. K.P. (now known as K.F.) was 17 and B.K. (now known as B.M.) was 18. K.P. and B.K. were invited to and attended the dinner and subsequent celebration. The dinner invitations were extended by Respondent, who was their teacher, during the school year. There was a conflict in the evidence as to when this dinner engagement occurred.2 That conflict is resolved by finding that the dinner engagement occurred at the Cork and Cleaver restaurant in Boca Raton prior to the graduation ceremonies for the class of 1986. At least four female seniors were invited to Respondent’s celebration. K.P., B.K., and two other female students attended the dinner. All four of the students consumed alcohol at the restaurant that was purchased by Respondent. Respondent knew that the drinking age was 21 and he knew that each of the girls was under that age. Respondent also consumed alcohol at the restaurant. Following the meal, K.P. and B.K. sat on a bench outside the restaurant and continued to drink alcoholic beverages with Respondent. After approximately five bottles of champagne and/or wine had been consumed, Respondent K.P. and B.K. went from the bench outside the restaurant to Respondent’s house. The three of them were alone in Respondent’s house for several hours. At Respondent’s house they drank four to five additional bottles of wine. The quantity of alcohol consumed by Respondent, B.K., and K.P. that evening impaired their judgment. By all accounts, K.P. was inebriated and incapable of consenting to the acts that followed. Both B.K. and K.P. were excellent students who had little or no experience with alcohol. During the 1985-86 school year, K.P. had been a member of BRHS’s varsity teams in basketball, volleyball, and softball. During that school year, B.K. had been a member of BRHS’s varsity tennis team. After K.P. became inebriated, Respondent and K.P. went to Respondent’s bedroom where Respondent had inappropriate sexual relations with her. There was a conflict in the evidence as to whether Respondent had sexual intercourse with K.P. K.P. testified, credibly, that Respondent had sexual intercourse with her and that she suffered bleeding and discomfort the following day. K.P. also testified, credibly, that she had been a virgin up until that evening. Respondent admitted that K.P. was with him in his darkened bedroom with little or no clothes on, but he denied having sexual intercourse with her. Respondent admitted that he fondled K.P.’s breasts and engaged in what he described as “heavy petting.” The undersigned finds Respondent’s denial that he had sexual intercourse with K.P. also to be credible. In view of conflicting, credible testimony and the absence of corroborating evidence to substantiate the fact of sexual intercourse as opposed to the fact that there was the opportunity for sexual intercourse, the undersigned is constrained to conclude that Petitioner did not prove by clear and convincing evidence that Respondent engaged in sexual intercourse with K.P. Petitioner established by clear and convincing evidence that K.P. did not consent to Respondent’s inappropriate sexual behavior because she was too intoxicated and too young to do so. Respondent knew or should have known that K.P. was incapable of consenting to his behavior. After Respondent and K.P. entered Respondent’s bedroom, B.K. left Respondent’s house and drove around the block in her car for approximately 20 minutes. Because she was concerned about K.P., B.K. returned to Respondent’s house. When she returned to Respondent’s house, B.K. looked for K.P. She stepped into the doorway of Respondent’s bedroom and saw Respondent and K.P. in bed together. K.P. was not fully clothed, and the clothes she had on were in disarray. K.P. told B.K. to come in and get in the bed with them. K.P. grabbed B.K.’s arm and pulled her toward the bed. B.K. entered the bedroom and briefly lay on the bed with Respondent and K.P. Shortly thereafter, B.K. got up and left Respondent’s bedroom. Because she was feeling dizzy, B.K. lay down on a mattress in another bedroom. There was a conflict in the evidence as to what next occurred. It is clear that K.P. either intentionally cut herself or accidentally opened a cut on her hand. Respondent testified that K.P. accidentally opened up a cut on her finger while in his bedroom and then went to the kitchen. K.P. testified that she went from Respondent’s bedroom to the kitchen and intentionally cut herself in reaction to what had happened with Respondent. How the cut occurred is not relevant. It is relevant that Respondent went in the kitchen and helped K.P. stop the bleeding. After leaving the kitchen area, Respondent observed B.K. lying on the mattress in the second bedroom. He lay down on the mattress with B.K. with his body touching hers. He tried to kiss B.K., but she resisted his efforts. Respondent engaged in inappropriate sexual behavior with B.K. by lying next to her with his body in contact with hers and trying to kiss her. Respondent was obviously attempting to sexually arouse B.K. When K.P. saw Respondent and B.K. together in the second bedroom, she yelled at B.K. that they needed to get out of Respondent’s house. B.K. and K.P. then exited Respondent’s house and they returned to their respective homes in B.K.’s car without further incident. The next day, Respondent contacted B.K. and K.P. separately and apologized to them for his conduct. Respondent also apologized to B.K. for his conduct with K.P. Respondent stated that he had been unable to resist their athletic bodies. Respondent gave each of these girls a pair of diamond earrings as a gift. K.P. and B.K. did not report these events to any authority figure until 1993.3 As a result of difficulties K.P. (then known as K.F.) was having with sex in her marriage, she and her husband underwent counseling. It was during a session she and her husband had with their therapist that she revealed the events of the evening in 1986. Her husband, a teacher, felt obliged to report the incident to the Palm Beach County School District, which he did without naming K.P. and B.K. as being the students involved. His wife became upset when she learned of the report. After further reflection, K.P. revealed to the Palm Beach County School District that she and B.K. were the students involved with Respondent on the evening in question. The Palm Beach School District investigated the allegations, but it did not report these allegations to Petitioner. Petitioner learned of these events during its investigation of the facts pertaining to K.S. FACTS PERTAINING TO L.E. L.E., a female, graduated from BRHS in 1986. Respondent met L.E. when she was a freshman at BRHS and he subsequently became attracted to her. During her senior year, Respondent offered tickets to a Miami Dolphins football game to L.E. and other students as a reward for helping him grade papers in the class they took from him. Before she graduated, Respondent told L.E. that after she graduated he wanted to take her to dinner. There was insufficient evidence to establish that Respondent engaged in an inappropriate relationship with L.E. before she graduated. After she graduated, Respondent treated L.E. to dinner,4 gave her a pair of diamond earrings, and told her he wanted to be more than friends. Later during the summer of 1986, Respondent and L.E. went to Marathon, Florida, together and also traveled to San Francisco, California, at Respondent’s expense. DISCIPLINE PERTAINING TO K.S. K.S., a female, attended BRHS for her freshman through her senior years. She graduated in 2003. Respondent was K.S.’s history teacher in her junior year and her psychology teacher her senior year. During the 2001-2002 school year, K.S. confided certain personal family matters to Respondent. Thereafter, Respondent engaged in inappropriate conduct toward K.S. On at least five occasions toward the end of the 2001-02 school year Respondent came to her place of employment (a Kmart) looking for her. On one occasion he left her a gift of a cheesecake and on another he left a bag of M & M candy as a gift. These visits upset and frightened K.S. At the beginning of the 2002-03 school year, Respondent physically hugged K.S. when he first saw her in his psychology class. On several occasions Respondent put his hands on K.S.’s shoulders and massaged them. On one occasion he rubbed her hair. This type physical contact continued even after K.S. told Respondent not to touch her. On one occasion Respondent referred to K.S. in front of her classmates as being his “baby.” Respondent’s conduct upset and embarrassed K.S. K.S. complained to Robert O’Leath, a dean of students at BRHS, about Respondent’s behavior. Following an investigation of these allegations, the School Board of Palm Beach County suspended Respondent’s employment without pay for a period of ten days and required him to attend diversity and sensitivity training. Respondent did not contest this discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further recommended that the final order permanently revoke Respondent’s educator certificate. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 25th day of February, 2005.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. The School Board has employed Respondent for approximately 15 years as a school security monitor. As such, at all times relevant to this proceeding, Respondent was a non- probationary “educational support employee” within the meaning of Section 1012.40, Florida Statutes, whose employment can be terminated for reasons stated in the applicable collective bargaining agreement, which is the contract between the Miami- Dade County Public Schools and the United Teachers of Dade (the CBA). Article XXI, Section 3.D of the CBA provides that educational support personnel can be terminated for “just cause.” The term “just cause” is defined by that provision of the CBA as follows: . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule [Florida Administrative Code Rule] 6B-4.009. During the 2007-2008 school year, Respondent was a school security monitor assigned to the Lawrence Center. Prior to that assignment, Respondent had been assigned to Miami Beach Senior High School (Beach High School). While at Beach High School, there was a probable cause finding that Respondent had engaged in an inappropriate sexual relationship with a high school student who was over 18 years of age. As a result, Respondent’s employment was suspended without pay for a period of 30 days. Respondent accepted the 30-day suspension and agreed not to appeal. Ms. Durden began working as a Data Input Specialist at the Lawrence Center in May of 2008. Shortly after her arrival, Respondent asked Ms. Durden (then known as Ms. Williams), who was on her way to lunch, to bring him back lunch. The request, which Ms. Durden denied, caused her to feel uncomfortable. Thereafter, Respondent came to come to Ms. Durden’s work area on several occasions and asked her for the mints that she kept on her desk. Ms. Durden believed that Respondent was leering at her. Ms. Durden clearly disliked Respondent and felt uncomfortable in his presence. On June 3, 2008, Respondent was in the parking lot area when Ms. Durden walked by to retrieve an object from her car. Respondent was talking to someone in a parked vehicle. The identity of the person in the parked vehicle could not be established and there was no evidence as to the subject of the conversation between Respondent and the unidentified person in the vehicle. As Ms. Durden walked by, Respondent tried to get her attention by yelling out to her “Hey baby.” Ms. Durden did not respond. When she was on her way back into the school, Respondent told her, “Ms. Williams, I know you heard me speaking to you.” Ms. Durden (Williams) then told Respondent, “My name is not ‘hey baby.’ My name is Ms. Williams, and you address me as such.” There was no evidence that Respondent continued to address Ms. Durden inappropriately. On June 5, 2008, Ms. Durden walked into the after care office to speak to Ms. Staples, who was working as an After Care Specialist. Respondent was in the after care office with several other employees, both male and female. When Ms. Durden walked into the after care office, Respondent blurted out “my dick is hard.” Ms. Durden immediately left the room feeling disgusted by Respondent’s remark. Ms. Staples testified that Respondent made the statement “my dick is on hard.” Ms. Staples and the other employees who had been meeting in the after care office also immediately left the office after Respondent’s statement. Ms. Staples and her colleagues were shocked by Respondent’s statement.2 On June 6, 2008, Ms. Durden and Ms. Santos passed out paychecks or pay stubs to employees. Respondent appeared at the threshold of Ms. Durden’s office, which is part of the main office, and asked for his paycheck. Ms. Durden asked Respondent to leave while she sorted through the paychecks. Ms. Durden was uncertain whether Rich was Respondent’s first name or last name. There was a verbal exchange between Respondent and Ms. Durden as to that issue. Respondent remained outside of Ms. Durden’s office, but in a position where he could observe her. Ms. Durden testified, credibly, that Respondent was leering at her. Ms. Durden became so uncomfortable that she started shaking. Prior to June 6, 2008, Ms. Durden had told Ms. Santos that she did not like Respondent and felt uncomfortable around him. Ms. Santos attempted to keep Respondent away from Ms. Durden by offering to get anything he might need from the main office and bringing it to Respondent’s duty station. On one occasion, Ms. Santos observed Respondent staring at Ms. Durden’s rear end. On June 6, 2008, Ms. Santos observed that Ms. Durden was very uncomfortable being in Respondent’s presence. She intervened by finding Respondent’s paycheck and bringing it to him. Ms. Durden reported these incidents first to Ms. Johnson-Brinson (an assistant principal) and then to Mr. Osborne (the principal). Thereafter the School Board followed all relevant procedures leading up to its vote to discipline Respondent by terminating his employment. Ms. Johnson-Brinson is not aware of any complaints from any Lawrence Center employees other than Ms. Durden pertaining to inappropriate behavior by Respondent. Mr. Osborn testified as to the reasons he recommended the termination of Respondent’s employment. Part of those reasons related to behavior by Respondent during his tenure at the Lawrence Center that was not alleged in the Notice of Specific Charges. That non-alleged behavior is irrelevant and has not been considered by the undersigned in reaching the findings and conclusions set forth in this Recommended Order.3
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2009.
The Issue At issue herein is whether or not the Petitioner, Dade County School Board (sometimes referred to as School Board or Board), carried its burden of proof to sustain its suspension and requested dismissal of the Respondent, Bernice Schlecker, on grounds of alleged incompetency, willful neglect of duty and/or gross insubordination as set forth and defined in Subsection 231.36(6), Florida Statutes. Also at issue is whether or not the Respondent breached her employment contract with the Petitioner and is therefore subject to dismissal based on her refusal to be examined by a psychiatrist approved by the School Board.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the arguments of counsel, 1/ the following relevant facts are found. Based upon a recommendation by the Superintendent, the School Board of Dade County, Florida, suspended the Respondent, Bernice Schlecker, from her employment as a teacher at Shadowlawn Elementary School on May 24, 1978. Respondent has been employed as a teacher for approximately seventeen (17) years. The Board further proposed to dismiss the Respondent based on its contention that she is unable to impart an education to her students; exhibited a lack of control over students during her classes; failed to prepare lesson plans; used poor judgment respecting the disciplining of students; failed to carry out School Beard plans and policies; failed to submit to a requested psychiatric examination and was excessively absent from her teaching position. This case was initiated with the Division of Administrative Hearings based on Respondent's request for a hearing on the matter of her suspension and the Petitioner's proposed dismissal. For the two school years immediately preceding her suspension, Mrs. Schlecker was absent from her duties with the School System more often than she was present. In this regard, answers to Interrogatories indicate that the Respondent was absent for a total of approximately twelve (12) days from August to January 3 during the 1976-77 school year and that she requested and was granted a leave of absence on January 4 through the end of the school year in June of 1977. During the 1977-78 school year, Respondent was absent a total of approximately one hundred (100) days. The testimony of several of Respondent's supervisors during the two- year period prior to her suspension indicates that Respondent often reported for work late; that she often left early or during the workday sometimes with and other times without permission from her supervisors. The primary causes of Respondent's absences during the two years prior to her suspension was back pain, anxiety and depression. Dr. Lester A. Russin, Respondent's orthopedic surgeon, testified that he did not foresee Respondent's back problem improving much because she refused to follow medical advice. Additionally, Respondent's personnel records reflect that she suffered from a psychiatric disorder which is of a long-standing nature. School System administrators testified during the hearing that Respondent's chronic absenteeism results in additional expenditures for the School System inasmuch as substitute teachers are needed when absences are occasioned by an illness warranting sick leave with pay. Additionally, the administrators indicated that the educational program is disrupted when the regular classroom teacher is absent. Respondent's co-workers testified that she was continuously unable to control her students' conduct during classes. Respondent's supervisors opined that this lack of control was in large part due to Respondent's lack of organization and failure to prepare lesson plans. Although required to prepare and follow lesson plans, evidence reveals that often Respondent prepared inadequate plans or no plans whatsoever. Efforts on the part of the School System to assist Respondent in her areas of weakness were unavailing. For example, during the 1977-78 school year up until her suspension, Respondent was assigned to Shadowlawn Elementary School. Dr. David Felton, Principal; Ms. America Bermudez, the Assistant Principal; and two teachers from the school testified that her classes were totally out of control most of the time. Testimony in the case indicates that students jumped in and out of windows and left the classroom at will. A group of students repeatedly crawled under Respondent's portable classroom and lit matches. Respondent often called upon other staff members to control her class or to supervise her class while she left, and the noise level emanating from Respondent's classroom was often loud enough to distract other teachers. In this regard, a faculty advisory committee made up of Respondent's coworkers vehemently complained about Respondent to the Principal. Members of the advisory committee voiced their concern that the students in Respondent's classroom were in physical jeopardy as well as being deprived of an education due to Respondent's lack of classroom control. During this period, Respondent requested assistance from the central office in bringing her class under control or to remove unruly students. Such requests were complied with by the administration. Additionally, the administration of Shadowlawn Elementary School attempted to assist Respondent by advising her of methods to improve her instruction and classroom control. To further this end, Respondent was requested to draft detailed plans and to submit these to Assistant Principal Bermudez for review. According to Ms. Bermudez, Respondent, although complying with her request to submit the plans, did not fully comply inasmuch as the plans were not at all detailed. Ms. Bermudez testified that several other recommendations made by her were met by tearfulness, hysteria and other nonproductive conduct and acts by Respondent. Nearing the end of the school year, Dr. Felton and Respondent agreed that she should receive assistance from an expert teacher. To achieve this, Ms. Evelyn Looney was called in to assist. Ms. Looney's testimony is that she found Respondent's classroom in total havoc and that Respondent often appeared "spaced out". Ms. Looney noted that Respondent left the classroom while she was showing her how to teach a lesson. Based on her observation and recommendations of Respondent, Ms. Looney opined that Respondent was an incompetent teacher and would not benefit from any amount of remediation. Subsequent visits to Respondent's classroom by Ms. Bermudez and Principal Felton revealed no improvement in Respondent's lesson presentation or classroom control. Approximately one-half of Respondent's first grade class at Shadowlawn were retained the following year. In this regard, Respondent contended that her class was larger then normal in the assignment of pupils with behavioral and other learning disabilities. However, first grade teacher Nancy Sturtz testified that when she taught the same students the following year, she found that although they were initially disruptive, they quickly calmed down and responded to instructions. For the three years preceding Respondent's assignment to Shadowlawn, she was employed at North Beach Elementary School. For the last two years of this period of time (1975-76 and 1976-77), her principal was Dr. Amy Dansky. Dr. Dansky initially assigned Mrs. Schlecker to assist other teachers by tutoring all groups rather than to teach an entire class. This tutorial function had been performed by Respondent during the 1974-75 school year. Respondent's fellow teachers unequivocally advised Dr. Dansky that Respondent was more disruptive than helpful and they refused offers of assistance from her. During the spring of 1976, a sixth grade teacher at North Beach became ill and requested leave. Respondent was assigned to take over her classroom. Dr. Dansky's testimony is that Respondent lacked any classroom control and that turmoil was rampart during the period in which Respondent stood in for the ill teacher. At the conclusion of the 1975-76 school year, Dr. Dansky had a conference with the Respondent and together they worked out a program whereby Respondent would improve her performance for the upcoming school year (1976-77). Respondent was assigned to the sixth grade class for this school year and Assistant Principal Gwendolyn Grant was assigned to assist her. Although Respondent was requested to submit lesson plans at North Beach, she often failed to do so and on those occasions when plans were submitted, they were often deficient. Respondent's behavior at North Beach was similar to her behavior at Shadowlawn and attempts to assist her were met with the same inappropriate, unproductive responses. Ms. Dena Feller, an instructor who was situated across the hall from Respondent, testified that Respondent's classroom was generally in havoc and that on two occasions she was required to run into Respondent's classroom and remove two different students from second story windows from which they were about to jump. Ms. Feller was also required to bring Respondent's class back under control on many occasions and finally complained to Dr. Dansky about the situation. In addition to the complaints by other teachers, parents of students at North Beach also complained and, based on such complaints, Dr. Dansky removed twelve (12) students from Respondent's classroom. Respondent also contends that at North Beach she was assigned a disproportionate number of students with discipline and other behavioral problems. In this regard, the testimony of other witnesses dispute Respondent's claim. During the preceding year, Respondent was assigned as a reading teacher under the supervision of Leonard Greenbaum. Respondent was assigned to work as a team teacher and during this time other team members complained to Mr. Greenbaum respecting Respondent's failure to carry her share of the workload. Based thereon, Respondent was assigned to tutor. Initially during the 1973-74 school year, Respondent was assigned to Floral Heights Elementary School. The Principal, Ms. Rowena Sutton, testified that Respondent worked well supervising small groups but that her absences and tardiness coupled with crying, inordinate amounts of time spent on the telephone resulted in her (Ms. Sutton's) request that Respondent be reassigned from Floral Heights. Respondent was next assigned to Flagler Elementary School although she failed to report on the designated date. Again, Respondent's work hours were erratic and she often reported tardy or left the building early, without permission. While at Flagler, Respondent failed to prepare lesson plans and while it was evident that she spent a great amount of time preparing to teach, she never was able to impart any instructions to students. Ms. Wood, the Principal at Flagler Elementary School, advised Mr. Greenbaum that Respondent was not considered an asset to the school. Respondent was next assigned to Douglas Elementary School. The Principal, Mr. Donald Oliver, observed Respondent's classroom on numerous occasions and he testified that Respondent's classroom was, in general, chaotic and that Respondent, while expressing familiarity with the materials, was never able to teach the students during his observance of her class. At the conclusion of the 1973-74 school year, Mr. Greenbaum did not recommend Respondent to continue as a reading teacher. Respondent's personnel file reflects that she has taught at approximately ten (10) schools during the seventeen (17) years that she has taught in Dade County, and her annual evaluations, on average, failed to meet the minimum passing level. (Petitioner's Exhibit 1.) RESPONDENT'S FAILURE TO SUBMIT TO A PSYCHIATRIC EXAMINATION The parties stipulated that the contract signed by Respondent in 1959 is the continuing contract in effect between the parties. Article 24, Section I, paragraph 4 of said contract provides as follows: The employee further agrees that the party of the first part shall have the right at any time during the term of this contract, to require that the party of the second part shall submit to either a physical or psychiatric examination by at least two qualified physicians or psychiatrists appointed by the party of the first part. The party of the second part agrees to submit to this examination, if requested, and to allow the report of the said physicians or psychiatrists to be submitted to the party of the first part. . .Failure of the employee to fulfill this contract, or to carry out the lawful provisions thereof, unless prevented from so doing by reason of personal illness or other just cause, or unless released from the contract by the county board, shall constitute sufficient grounds for the termination of the contract on the part of the county board. Additionally, the contract provides under Subsection (a) that: At all times the choice from among state licensed physicians, psychologists, psychiatrists, shall be made by the employee from a list provided by the employer. No employee shall be compelled to submit to any test or examination not required of all employees of that classification without a written statement of the need for such examination. Petitioner, in its Notice of Charges, stated in writing that it was the Board's position that Respondent was emotionally unstable. Based thereon, it is found that such statement provides a need for the examination. Respondent failed and refused to submit for examination by a psychiatrist from the list provided by the School Board. Without question, the Respondent appears to be a very dedicated teacher and spends a great amount of time preparing for instruction. This preparation includes time spent preparing lesson plans at home. Additionally, the parents of numerous students which Respondent had taught expressed their belief that their children had progressed while they were students in Respondent's classroom. Respondent exemplified a great deal of care and concern for the well being and educational needs for students. Petitioner, by its administrative officials, does not contest Respondent's concern for the educational needs of her students. However, what is at issue, is Respondent's failure to impart, through a structured educational setting, a planned method for teaching students. In this regard, the evidence revealed that Respondent's efforts fall short of the mark required of teachers employed by Petitioner. For this reason, I am forced to recommend that the Petitioner's suspension of Respondent be upheld. Further, in view of Respondent's failure to submit to a psychiatric examination as requested by Petitioner, the Respondent breached her obligation to submit to psychiatric examination on request by the Petitioner. In view thereof, additional basis exists to support Petitioner's suspension of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the suspension of Respondent, Bernice Schlecker, be SUSTAINED. Additionally, it is recommended that the Respondent be offered an option to resign from the School System within five (5) days from the entry of the Board's final order. Absent such resignation by Respondent, it is recommended that the Respondent be dismissed from her employment with the Dade County School Board. RECOMMENDED this 25th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, 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 25th day of October, 1979.
The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
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 factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, 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 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
The Issue Whether the Respondent committed the violation alleged and if so what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case the Respondent was employed by the Palm Beach County School District and was assigned as principal at John F. Kennedy Middle School (JFK). On or about March 9, 1998, a guidance counselor at JFK spoke with the Respondent regarding a complaint from a female student that she had been inappropriately touched by a male teacher at the school. Given the casual nature of the complaint, the Respondent believed the matter to be a "rumor" and made a note to himself to "check on" the allegation. The Respondent did not follow up on the allegation and did not "check on" the rumor. The Respondent also did not verify whether or not the guidance counselor investigated the allegation. Subsequently the Respondent became aware of other allegations involving the same teacher. The complaints alleged inappropriate acts with students. At least one of the incidents was witnessed by a student who supported the complainant's allegation. All of the incidents involving the teacher occurred before a criminal complaint was filed by a parent. It is undisputed that the Respondent knew of one or more of the alleged complaints. At no time prior to the teacher's arrest did the Respondent notify school authorities or the Department of Health and Rehabilitative Services (HRS) of the allegations previously made against the teacher. At all times material to the allegations of this case, the Palm Beach County School District had a policy in effect that required the Respondent to notify HRS and school district authorities regarding the types of complaints involved in this case. Such policy is set forth in its entirety within the Petitioner's Exhibit 1. Respondent did not view the incidents complained of as sufficiently serious to merit notification of authorities, as he maintained he did not have a reasonable cause to suspect that a child had been abused. Notwithstanding this position, the Respondent did nothing to confirm or disprove the allegations. At least one female student complainant continued to be enrolled in the alleged perpetrator's class before the arrest of the suspect. The failure of the Respondent to report the incidents seriously reduced his effectiveness as an employee of the Palm Beach School District. As a result, the Respondent was relieved of his position as principal at JFK and reassigned to another position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding the Respondent. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Sammy Berry, Jr., Esquire 516 South Dixie Highway, Suite 1 Lake Worth, Florida 33461 Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street Florida Education Center, Room 224-E Tallahassee, Florida 32399 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
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 dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132