Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
The Issue Whether the Respondent's employment as a teacher with the Petitioner should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla Stat (2004). At all times material to this proceeding, Mr. Epstein was employed by the School Board as a music teacher at Twin Lakes Elementary, under a continuing contract with the School Board. Mr. Epstein was first employed by the School Board in a part-time position in February 1978. Mr. Epstein took a full- time teaching position at Twin Lakes Elementary in 1980, where he taught continuously until he was given an alternate work assignment in June 2003. Mr. Epstein has not previously been the subject of disciplinary action by the School Board. Mr. Epstein consistently received satisfactory annual evaluations during his employment at Twin Lakes Elementary. Although he did not receive an annual evaluation for the 2002- 2003 school year, he received a satisfactory observation during that year. In addition, Mr. Epstein was named Teacher-of-the- Year at Twin Lakes Elementary during the 1988-1989 school year.3 Mr. Epstein had daily access to a computer that was owned by the Miami-Dade County public school district and placed in his classroom. The classroom computers were to be used to develop instructional programs and to gather lesson materials from the Internet. Mr. Epstein and all of the teachers at Twin Lakes Elementary were required to read and adhere to the school district's Acceptable Use Policy for the Internet. Late in the 2001-2002 school year, Mr. Epstein asked Jesus Vigo, a microsystems technician, to check his computer because Mr. Epstein could not access the Internet. Mr. Vigo checked the Internet history file to find out when Mr. Epstein had last accessed the Internet. In the history file on Mr. Epstein's classroom computer, Mr. Vigo found several addresses for pornography web sites. After he made certain that Mr. Epstein's computer was operating properly, Mr. Vigo reported to Michele Lam, the computer coordinator and media specialist at Twin Lakes Elementary, that he had found "questionable" web sites on Mr. Epstein's computer. Ms. Lam believed that Mr. Epstein had most likely visited these web sites accidentally, and she told Mr. Vigo not to tell anyone that he had found the addresses on Mr. Epstein's computer. Instead, Ms. Lam told Mr. Vigo that he should regularly monitor Mr. Epstein's computer. Mr. Vigo monitored Mr. Epstein's computer once a week, at random, for approximately four months, until he left his job at Twin Lakes Elementary. During this time, Mr. Vigo found no questionable web-site addresses in the Internet history on Mr. Epstein's computer. No one regularly monitored Mr. Epstein's computer after Mr. Vigo left Twin Lakes Elementary. A new microsystems technician, Pedro Valdes, began work at Twin Lakes Elementary in September 2002, and, in January 2003, new computers were installed in all the classrooms. These computers operated through the Miami-Dade County public school district's mainframe computer, and the software loaded onto the computers was approved by and licensed to the school district. The mainframe also had a filter that prohibited access to certain web sites from the school district's computers. In February 2003, Mr. Epstein complained to Ms. Lam that he was having problems with his computer. When Mr. Valdes tried to fix the computer, he found that several software programs had been loaded onto the computer. Mr. Epstein admitted that he had loaded Netscape, an Internet browser, so that he could access music sites that he could not access using the school district's Internet browser. Although he tried, Mr. Valdes was not able to fix Mr. Epstein's computer completely, and he moved on to other work. Finally, in April 2003, Mr. Valdes fixed Mr. Epstein's computer and made certain that all of the school district's software was working properly. In early May 2003, however, Mr. Epstein told Mr. Valdes that he could not get into his computer. Mr. Valdes examined the computer and, when he saw that the computer's recycle bin was full, he decided to empty it. When Mr. Valdes opened the recycle bin, he saw that there were several addresses for pornography web sites, as well as addresses for other types of web sites. When Mr. Valdes discovered these web-site addresses, Mr. Epstein admitted to Mr. Valdes that he had downloaded and viewed pornographic videos on the school district computer, in addition to using the computer's Internet access to locate and download information from music and instructional web sites. Mr. Epstein also admitted to Mr. Valdes that he had deliberately by-passed the school district's Internet filter in order to gain access to the pornographic material. Mr. Valdes told Mr. Epstein that he should not view such web sites on the school district's computer, but he agreed not to tell anyone about his discovery. Nonetheless, after he thought about it, Mr. Valdes felt obligated to report his discovery to Ms. Lam because he considered the matter so serious. Mr. Valdes was visibly upset when he told Ms. Lam about the pornography web site addresses. Ms. Lam and Mr. Valdes went to the office of Maria de Leon, the principal of Twin Lakes Elementary, and told her what Mr. Valdes had discovered on Mr. Epstein's computer. Ms. de Leon called Mr. Epstein to her office and, among other things, told him to cease using his classroom computer for any purpose. Mr. Epstein had been downloading pornography from the Internet and viewing pornographic videos in his classroom on the computer provided by the school district for approximately seven months prior to Mr. Valdes's discovery of the pornography web site addresses. Mr. Epstein knew that access to these pornography web sites was blocked by the filter on the school district's mainframe computer, which is the reason he devised a strategy for circumventing the filter. Mr. Epstein downloaded pornographic videos onto the school district's computer at night, during the workday when students were in his classroom, and during the workday when no students were in the classroom. Mr. Epstein always turned the computer monitor off when he was downloading pornography during class time, so that the students could not glance at his computer and see the material he was downloading. Mr. Epstein also hid the downloaded pornographic videos in folders hidden within other folders, so that it would not be obvious to a substitute teacher who logged onto his classroom computer that pornographic videos were stored in the computer. Mr. Epstein never viewed pornographic videos when students were in his classroom. He did, however, view the videos during the times of the school day when he was expected to plan and prepare lessons, and he also viewed these videos after the students had left school for the day, generally between 3:00 p.m. and 4:30 p.m.4 Mr. Epstein viewed pornographic videos and masturbated in his classroom approximately 15 to 20 times during the spring of 2003, after the students had left school for the day but during the time he was expected to work on lesson plans. When he viewed pornographic videos and masturbated in his classroom, Mr. Epstein was careful to lock the classroom door.5 Mr. Epstein took precautions to conceal his activities because he knew that his activities violated School Board rules, and he also did not want the materials to be discovered by a student, a substitute teacher, or anyone else. Even though Mr. Epstein took care to see that his classroom door was locked when he viewed pornographic videos and masturbated in his classroom, there was a risk that he would be interrupted. The Twin Lakes Elementary custodial and administrative staff, including secretaries, had keys to all of the classrooms. Occasionally, a parent would return to school with a student who had left something in a classroom, and a school employee would escort the parent and student to the classroom and use his or her key to enter the classroom. The pornographic material that Mr. Epstein downloaded and viewed on his classroom computer did not involve children. It was, however, obscene, as defined by the School Board in its Acceptable Use Policy for the Internet.6 Ms. de Leon decided to try to keep information about Mr. Epstein's activities confidential because she was very concerned about the reaction of the parents of the children attending Twin Lakes Elementary and of the community as a whole. Ms. de Leon knew that many of the parents of the children attending Twin Lakes Elementary were conservative Catholics who were very protective of their children.7 Ms. de Leon believed that if news of Mr. Epstein's activities became known in the community, Twin Lakes Elementary "would have been in the first page of the [Miami] Herald for quite a long time."8 On May 6, 2003, the day Mr. Valdes discovered the pornography web-site addresses on Mr. Epstein's computer, Mr. Epstein went to Linda Van Leer, the assistant principal at Twin Lakes Elementary, and asked that she put him on the agenda for the faculty meeting scheduled for that afternoon. Ms. de Leon had, by this time, notified Ms. Van Leer of the situation involving Mr. Epstein and of her decision to limit knowledge of the matter to as few people as possible. Mr. Epstein told Ms. Van Leer that he intended to make a statement to the faculty to assure the faculty members that the pornography he downloaded and viewed did not involve children and that he never viewed pornography when students were in the classroom. Ms. Van Leer was as concerned as Ms. de Leon about the disruption at Twin Lakes Elementary if information about Mr. Epstein's activities became known in the community, and she also believed that Mr. Epstein did not appreciate the ramifications of his announcing his activities to the faculty. Ms. Van Leer denied Mr. Epstein's request to speak to the faculty and told him not to speak of the matter to anyone except Ms. de Leon. Ms. de Leon reported Mr. Epstein's activities to the Miami-Dade County Public Schools police on May 6, 2003, and the investigation was assigned to Bradley Rosh on May 13, 2003. Sergeant Rosh found Mr. Epstein very cooperative during the investigation, and Mr. Epstein prepared a statement in which he described the nature and extent of his activities. Sergeant Rosh submitted his preliminary investigation report on July 16, 2003, in which he concluded that the allegations that Mr. Epstein had violated the School Board's Acceptable Use Policy for the Internet and the responsibilities and duties of School Board employees were substantiated. The investigative report was sent to the Office of Professional Standards for final disposition. Reinaldo Benitez, a district director of the Miami- Dade County Public Schools Office of Professional Standards, convened a Conference-for-the-Record on August 11, 2003, to discuss the investigative report and the charges against Mr. Epstein, to review his record, and to discuss his future employment status with the School Board. Mr. Benitez, Mr. Epstein, Ms. de Leon, and Marie Harrison, Business Director of ACCESS Center 1, participated in the Conference-for-the- Record. As reflected in the Summary of the Conference-for-the- Record dated August 22, 2003, the findings in the investigative report were discussed with Mr. Epstein, who admitted that he was guilty of the charge that he had downloaded pornographic videos into the school district's computer located in his classroom, that he was aware when he did so that he was violating School Board rules, and that he had used very poor judgment. Mr. Epstein apologized for his actions, and he requested that, if he were allowed to resume teaching, he be provided a computer without access to the Internet. According to the Summary of the Conference-for-the- Record, Mr. Epstein was assigned to an alternative work location at his home at the beginning of the 2003-2004 school year.9 As reflected in the Summary of the Conference-for-the- Record, Mr. Epstein was offered the option of submitting his resignation, which he refused. Directives were issued to Mr. Epstein at the Conference-for-the-Record, including a directive that he not visit Twin Lakes Elementary at any time. Mr. Epstein was also advised to "keep the information presented in this conference confidential and not to discuss this with any students or staff. Finally, Mr. Epstein was advised that, following a review by the School Board's attorneys, he would be notified of the recommended disciplinary action, which could include dismissal. On August 13, 2003, Ms. de Leon submitted her recommendation to Margarita Alemany-Moreno, Assistant Superintendent in ACCESS Center 1, that Mr. Epstein be terminated from his employment with the Miami-Dade County Public Schools. Ms. Alemany-Moreno sent this recommendation to Virginia Bradford, Assistant Superintendent in the Office of Professional Standards, with the concurrence of the staff of ACCESS Center 1. Mr. Benitez convened a meeting with Mr. Epstein on September 26, 2003, to address his pending dismissal by the School Board at its meeting on October 22, 2003. Ms. de Leon and Ms. Harrison were also in attendance. Mr. Benitez informed Mr. Epstein that the recommendation for his dismissal was based on charges of immorality, misconduct in office, and incompetency. Mr. Epstein was offered the option of resigning his position or pursuing disability retirement, which he declined. Mr. Epstein submitted a statement dated September 29, 2003, in response to the August 22, 2003, Summary of the Conference-for-the-Record. In this statement, Mr. Epstein did not withdraw his admission that he had downloaded and viewed pornographic videos on the school district's computer located in his classroom. The Superintendent of Schools notified Mr. Epstein in a letter dated October 8, 2003, that he was recommending to the School Board that Mr. Epstein be dismissed from his employment. The School Board suspended Mr. Epstein and initiated dismissal proceedings at its October 22, 2003, meeting. Mr. Epstein believes that he has had a sexual problem since he was a teenager, when he first became attracted to pornography. He began using the computer in his classroom to download and view pornography after his wife discovered pornography on their home computer. She became angry, and he decided to move his activities to his classroom computer in order to avoid further family conflict. Approximately three years ago, Mr. Epstein was diagnosed with a "sexual addiction," and he began sessions with a sexual therapist. Mr. Epstein attended four individual therapy sessions, but was released in December 2002. Mr. Epstein attended small group therapy sessions for approximately 12 weeks during the time he was seeing Mr. Gray, and he also attended weekly sessions of an "accountability recovery group" from March 2001 until December 2003, when he began working at the Sam Ashe music store. On September 15, 2003, Carlos Plasencia, a mental health counselor, examined Mr. Epstein and initially diagnosed Mr. Epstein with "sexual disorder not otherwise specified." Dr. Plasencia's diagnosis has evolved, and he now believes that Mr. Epstein's diagnosis is "impulse control disorder," with a sexual component.10 Mr. Epstein is in therapy with Dr. Plasencia, and, at the time of the final hearing, he had been taking Zoloft, an anti-depressant prescribed by a psychiatrist, for approximately two months.11 In Dr. Plasencia's opinion, Mr. Epstein's addiction to pornography began approximately 27 years ago, developed slowly over the course of 24 years, and progressed faster than usual over the course of the last two to three years." According to Dr. Plasencia, Mr. Epstein feels powerless to overcome the compulsion to view pornography; he has tried to stop this behavior and has been unable to do so, even though it has disrupted his family and, now, poses a threat to his job.12 In Dr. Plasencia's opinion, "[c]hances are very likely Mr. Epstein was preoccupied with the attainment of pornography while he was in school. I agree with that because he was viewing it in school and downloading it in school."13 Although Dr. Plasencia acknowledged that Mr. Epstein's addiction to pornography is a preoccupation that has significantly interfered with his life and the life of his wife and son, Dr. Plasencia does not consider Mr. Epstein emotionally unstable, in the sense that he does not have extremes in mood or behavior. Mr. Epstein has always been open during his therapy with Dr. Plasencia and has demonstrated a genuine desire to fix his problem. He has been motivated and has followed Dr. Plasencia's suggestions. Dr. Plasencia believes that Mr. Epstein's prognosis for recovery is good. Mr. Epstein considers himself a "recovering" sexual addict and explains his behavior at Twin Lakes Elementary in the spring of 2003 as a "relapse."14 Summary The evidence presented by the School Board establishes that Mr. Epstein has committed misconduct in office. Mr. Epstein admitted that he deliberately by-passed the Internet filter in the school district's mainframe computer and accessed pornography web sites on his classroom computer; that he downloaded pornographic videos onto his classroom computer while students were in the classroom, during planning periods when the students were in school but not in his classroom, and after the students were dismissed from school; that he viewed pornographic videos on the classroom computer during planning periods when the students were in school but not in his classroom and after the students were dismissed from school; and that he frequently masturbated in his classroom while he watched pornographic videos. Mr. Epstein admitted that he engaged in the activities described above for approximately seven months prior to May 2003, although the evidence presented by the School Board establishes that addresses for pornography web sites were found in Mr. Epstein's classroom computer as early as June 2002. The evidence establishes that Mr. Epstein took precautions such as turning off the computer monitor when downloading pornographic videos while children were in his classroom, hiding the computer folders containing the pornographic videos in other folders, and locking his classroom door when he viewed pornographic videos and masturbated. It may reasonably be inferred, however, that he took these precautions to keep his activities hidden from students and school personnel and not primarily to protect his students from harm. At the time he was committing these acts, Mr. Epstein knew his behavior violated School Board rules; he knew that he was exercising poor judgment; and he knew that, if he were discovered downloading and viewing pornographic videos and masturbating in his classroom, his job could be in jeopardy. By downloading and viewing pornographic videos on his classroom computer, Mr. Epstein violated the School Board's rule prohibiting the transmission of obscene material, and downloading and viewing pornographic videos on his classroom computer and masturbating in his classroom constitute conduct unacceptable in a School Board employee. Mr. Epstein viewed pornographic videos and masturbated during his workday rather than planning lessons and engaging in other pursuits that would enhance his abilities as a teacher. The School Board, therefore, paid Mr. Epstein for time during which he did not work. Mr. Epstein could not use his home computer to download and view pornography videos because he feared discovery and disruption of his family life, so he used the classroom computer provided by the school district to satisfy his compulsion to view pornographic videos. Downloading and viewing pornographic videos and masturbating may not be considered objectionable when done in the privacy of one's home; these acts are, however, not consistent with the public conscience and good morals when, as here, they are done in the public space of an elementary school classroom. Nonetheless, the evidence presented by the School Board is not sufficient to establish that Mr. Epstein's activities have become public knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that Daniel J. Epstein committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to Section 1012.33(4)(c), Florida Statutes. DONE AND ENTERED this 26th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2004.
The Issue The issue in this case is whether just cause exists for Petitioner, Broward County School Board, to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days without pay.
Findings Of Fact The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes.2/ Respondent has been employed as a teacher with Petitioner since 1992, and has been employed as an art teacher at Western High School ("Western") since 2009. Evidence Adduced at the Final Hearing During the 2018—2019 school year, Respondent was assigned to teach Creative Photography I, an elective course, at Western. The 2018—2019 school year was the first year this course was taught at Western. In May 2018, Respondent requested that textbooks be ordered for the Creative Photography I course. As of the first few weeks of the 2018—2019 school year, the textbooks for the course had not yet arrived. Respondent testified, credibly, that she did not have access to any textbooks from which to plan her instruction during the time she was waiting on the arrival of the textbooks. During the planning period before the first week of school, Respondent contacted photography teachers at other schools in the Broward County Public School District ("District") to obtain materials to use until her textbooks arrived. For a variety of reasons, much of the material she received from other teachers was not suitable for her course. According to Respondent, Christine Malin, who taught a photography course at another public high school in the District, assisted her by providing materials. Much of what Malin provided was not suitable because Respondent's class did not have access to cameras for student use. Malin also told Respondent about two videos on photography that she had found on the internet, and that Malin's description of the content of the videos sounded suitable for Respondent's course. Respondent testified that Malin told her that she had reviewed the videos. However, when asked whether Malin told her the videos were appropriate to show to a high school class, Respondent acknowledged that "[s]he didn't say anything about that." Respondent previewed one video in its entirety. She testified that "when it came to the second one, I did not preview it as closely as I did the first one because the first one I said, okay, this isn't bad." According to Respondent, she previewed the second video after school in the evening while she was working on school paperwork. She testified "[s]o I was doing that along with listening to the video and watching the video and I was doing some other stuff." Respondent showed the videos to her first period class on August 23, 2018. One of the videos contained a total of 11 images of nude men and women on seven slides. Two of the images, shown twice during the video, depicted the models in sexually suggestive poses with their genitalia clearly visible. One of the six images depicted a nude male, which, while not depicting genitalia, was accompanied by an audio narrative referencing a dominant sexual partner. The first nude images were shown in the interval from 3:02 to 3:13 in the video. Additional nude, sexually explicit images appeared in the interval from 3:14 to 3:21 and 3:21 to 3:36 in the video. All of these images were again shown in the interval from 3:36 to 3:43 in the video. The last nude images appeared in the interval from 5:08 to 6:25 in the video, accompanied by the sexually explicit narrative. The images comprised approximately two minutes of the nearly 13—minute long video. Respondent testified that she did not realize that the video contained nude images until she saw the first nude image, at which point she tried to turn the projector off. According to Respondent, she was "fumbling," but did eventually stop the projection of the nude images, albeit not before the students saw the additional nude images. Respondent also showed the video to her second period class. According to Respondent, as soon as she saw the first nude image, she shut the projector lens off and fast—forwarded past the other images, so that the students only saw one nude image. According to Respondent, she was able to use the portions of the video that did not contain nude images for instructional purposes in her first and second period classes. Six students in Respondent's class testified about what they saw in the video shown in Respondent's class that day. The students who testified were 15— and 16—years—old at the time of the incident. All six students who testified also had provided handwritten statements to Western assistant principal Derek Gordon as part of Petitioner's investigation into the incident. Four of the six students who testified were in Respondent's first period class. They each testified to the effect that they had viewed all of the nude images in the video. Some of these students, either in testimony or in their written statements, characterized the images as "inappropriate" or "disturbing." Two of the students who testified were in Respondent's second period class. They testified to the effect that they had seen more than one nude image and had heard sexually explicit audio narrative accompanying the last nude image in the video. One of these students, in a written statement provided during the investigation, characterized the images as "inappropriate." Respondent acknowledged that she did not obtain prior approval from the principal of Western or his designee, her department head, before showing the video to her class. She also acknowledged that she had previewed the video only three days, at most, before she showed it to her classes, and that she had not watched the entire video because she was multitasking. When questioned about when she prepared her lesson plan for August 23, 2018, she responded: "I wound up doing it that Monday, Tuesday, Wednesday because I was told I was getting my textbooks, they didn't come in and I know I needed an assignment. . . . I didn't plan for two weeks because I was expecting to get the textbooks in so we could use the textbooks." She acknowledged that it was her responsibility to thoroughly preview the video before she showed it to the students, and that she had not vetted it to the extent she should have before she showed it in her classes. After her second period class on August 23, 2018, Respondent reported to Derek Gordon that she had shown a video containing nude images in her first and second period classes. Gordon initiated the investigation that culminated in Petitioner proposing to suspend Respondent for three days without pay. Respondent's timely challenge to that proposed action is the subject of this proceeding. According to Gordon and Western Principal Jimmy Arrojo, many parents contacted the school regarding the incident, some of whom wanted their children removed from Respondent's class. Arrojo testified that the incident also was widely reported in the news. Following this incident, and apart from serving her three—day suspension, Respondent taught the Creative Photography I course at Western for the remainder of the 2018—2019 school year. Respondent currently is serving as a teacher facilitator for an online class at Western. She is not teaching the Creative Photography I course at Western for the 2019—2020 school year. School Board Policy and Faculty Handbook Requirements Petitioner and the administration at Western each have adopted relevant standards and requirements governing the use of audiovisual materials in classroom instruction. Specifically, school board policy 6100, titled "Audiovisual Materials Use Policy," requires audiovisual materials to be previewed "in their entirety" before being shown to students by the teacher using the material to ensure that the language, theme, level of violence, and content are consistent with the maturity level of the students who will be viewing the material. The policy adopts the Motion Picture Association of America's ("MPAA") ratings as the guidance standards for determining whether audiovisual materials are age-appropriate. The MPAA rating rule for the PG—13 category states, in pertinent part: "[m]ore than brief nudity will require at least a PG—13 rating, but such nudity in a PG—13 rated motion picture generally will not be sexually oriented." By contrast, the MPAA rating rule for R—17 states, in pertinent part: [a]n R—rated motion picture may contain adult themes, adult activity, . . . sexually—oriented nudity, or . . . other elements, so that parents are counseled to take this rating very seriously. Children under 17 are not allowed to attend R—rated motion pictures unaccompanied by a parent or adult guardian." Additionally, the Western High School Faculty & Staff Handbook for the 2018—2019 school year ("Faculty Handbook") includes several provisions relevant to the charges at issue in this proceeding. Specifically, the section of the Faculty Handbook titled "Movies" states, in pertinent part, that "[a]ll instructional resources, including audiovisual materials, must: be consistent with School Board of Broward County policies[,] [and] [r]eflect the best teaching practices based on age— appropriateness and instructional relevance, meant to support instruction[,] not replace it." Additionally, the Faculty Handbook requires faculty who intend to use audiovisual materials for class instruction to "[c]omplete a Movie Request Form of corresponding assignment [and] [s]ubmit Request Form to department chair for approval." The Faculty Handbook also states that each teacher is required to keep his/her lesson plans one week in advance, and specifies the components that each lesson plan must contain. The purpose of this requirement is to ensure that each lesson is prepared a sufficient time in advance so that classroom instruction is organized and effective. The Faculty Handbook does not contain, and Arrojo confirmed the absence of, an exemption to the lesson plan preparation requirement for situations when a textbook on order has not arrived by the time the course begins. To this point, the Florida Department of Education has ratified the Curriculum Planning and Learning Management System ("CPALMS"), which is the "State of Florida's official source for standards information and course descriptions." CPALMS provides "an online toolbox of information, vetted resources, and interactive tools to help educators effectively implement teaching standards." As Arrojo explained, CPALMS is the "go—to site" for every course that is offered. For the Creative Photography I course, there are 460 vetted and approved course— specific resources that are available to teachers on the CPALMS website for use as instructional material.3/ Respondent's History of Prior Discipline Respondent previously has been subjected to disciplinary action while employed by Petitioner. Specifically, Respondent's disciplinary history consists of the following: a written reprimand in February 1997 for using inappropriate language in class; a written reprimand in April 1997 for making inappropriate comments in class; a three— day suspension in 2009 for using inappropriate language in class; a verbal reprimand in 2014 for intentionally exposing a student to unnecessary embarrassment and disparagement; a written reprimand in November 2017 for inappropriately touching and yelling at students; and a written reprimand issued by the State of Florida Education Practices Commission in October 2018 for failure to make reasonable effort to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and safety. Findings of Ultimate Fact As discussed in greater detail below, Respondent has been charged in this case with misconduct in office, incompetency, and willful neglect of duty under Florida Administrative Code Rule 6A—5.056, and with violating Broward County School Board policies 6100 and 4008.4/ Whether a charged offense constitutes a violation of applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but is instead an ultimate fact). Misconduct in Office under Rule 6A—5.056(2) Based on the foregoing findings, it is found, as a matter of ultimate fact, that Respondent engaged in conduct constituting misconduct in office, as defined in rule 6A—5.056. Respondent's conduct violated several provisions of Florida Administrative Code Rule 6A—10.081, the Principles of Professional Conduct for the Education Profession in Florida, which has been incorporated into rule 6A—5.056(2). Specifically, in failing to adequately prepare her lesson plans a week in advance and failing to preview the video in its entirety, Respondent failed to exercise best professional judgment, as required by rule 6A—10.081(1)(b). As a result of her failure to exercise best professional judgment, she exposed the 15— and 16—year—old students in her classes to images that they found "inappropriate" and "disturbing." In doing so, she failed to make a reasonable effort to protect her students from conditions harmful to learning and their mental health, in violation of rule 6A—10.081(2)(a)1. Furthermore, even after Respondent became aware during her first period class that the video contained nudity and sexually explicit images, she nonetheless continued to show it, thereby exposing the students to additional nude, sexually explicit images and narrative that they otherwise would not have seen or heard. In doing so, she intentionally exposed the students in her first period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's failure to exercise best professional judgment was further compounded when, after learning of the images and narrative, she nonetheless chose to show the video to her second period class. Although she testified that she skipped over almost all of the nude content, the students' testimony established that, at minimum, they were exposed to the first two nude images at 3:02 in the video and the last image, with its sexually explicit narrative, starting at 5:08 in the video. In choosing to show the video despite being aware of its contents, Respondent intentionally exposed the students in her second period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's conduct also negatively affected the confidence and respect of her students' parents, in violation of rule 6A—10.081(1)(c), which establishes a standard to achieve and sustain the highest degree of ethical conduct. To this point, Arrojo and Gordon both testified, credibly, that they had received numerous calls from parents, requesting that their children be removed from Respondent's class. For the reasons discussed below, it is also found, as a matter of ultimate fact, that Respondent engaged in conduct that violated school board policies 6100 and 4008; thus, she violated rule 6A—5.056(2)(c). For the reasons discussed in detail above, it is found, as a matter of ultimate fact, that Respondent engaged in conduct that disrupted her students' learning environment, in violation of rule 6A—5.056(2)(d). Respondent's conduct also reduced her ability to effectively perform her teaching duties, in violation of rule 6A—5.056(2)(e). Specifically, as a result of Respondent's conduct, many parents requested to have their children removed from her class. This significant consequence evidences that Respondent's ability to effectively perform her teaching duties was reduced during the 2018—2019 school year. Incompetency under Rule 6A—5.056(3) It is also found, as a matter of ultimate fact, that Respondent's conduct constitutes incompetency due to inefficiency, in violation of rule 6A—5.056(3)(a). Specifically, in showing the video to her classes, Respondent violated school board policies and State Board of Education rules, and, thus, failed to perform her teaching duties as prescribed by law. By showing the video containing content that was not appropriate for her students to see and hear, she also failed to communicate appropriately with her students. Further, as a direct result of her disorganization in failing to adequately and timely prepare her lesson plans for August 23, 2018, including completely previewing both videos that she intended to show that day, the welfare of her students was diminished. The undersigned finds, as a matter of ultimate fact, that Respondent's conduct does not constitute incompetency due to incapacity. Although Respondent was not adequately prepared for her August 23, 2018, class, and, as a result, showed a video that was age—inappropriate for her students, the evidence does not establish that she lacked adequate command of her area of specialization. To the contrary, the evidence establishes that she taught the Creative Photography I course for the entire 2018— 2019 school year, and that, apart from her three—day suspension, incurred no further disciplinary action due to lack of preparation or use of inappropriate instructional materials. Willful Neglect of Duty under Rule 6A—5.056(5) It is found, as a matter of ultimate fact, that Respondent's conduct constitutes willful neglect of duty, in violation of rule 6A—5.056(5). As discussed above, once Respondent became aware, during her first period class, of the nude and sexually explicit images in the video, she nonetheless chose to continue showing the video to her first period class, thereby recklessly5/ exposing the students to additional nude images and sexually explicit content. Violation of School Board Policy 6100 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 6100. Specifically, by showing the video in her classes, Respondent violated policies 6100(1)(d) and (2)(a), which require that audiovisual materials selected for student instruction be age—appropriate. The evidence definitively establishes that the nude and sexually explicit images and narrative were not age— appropriate for the students enrolled in the class. The students who testified at the final hearing were 15— and 16—years—old. Pursuant to the MPAA ratings, which have been incorporated into school board policy 6100, audiovisual materials depicting sexually—oriented nudity——such as that depicted in multiple images in the video——would warrant an R—rating, indicating that they are inappropriate for viewing by children younger than 17 years old. Respondent's conduct also violated policy 6100(2)(b). She did not personally preview the video depicting the nude images that she showed in her class on August 23, 2018, and the video was neither part of Western's school audiovisual collection nor reviewed or recommended in professional literature. Additionally, Respondent's conduct violated policy 6100(3)(a), because she did not obtain prior approval from Arrojo or her department head before showing the video containing the nude images to her classes. Respondent's conduct also violated policy 6100(3)(c), because she did not preview, in its entirety, the video containing the nude images before she showed it to her students. Consequently, she did not pay due attention to assure that content was consistent with the maturity level of the students in her class. Violation of School Board Policy 4008 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 4008. Specifically, as discussed above, Respondent's conduct violated several provisions of rule 6A—10.081, and, thus, violated policy 4008(B)(1). Respondent also violated policy 4008(B)(1) by failing to effectively use the materials provided by the District or State in her class instruction on August 23, 2018. Although she could have chosen from the 460 units of material available on the CPALMS website——all of which were State—approved for use in Creative Photography I——she instead chose to show a video that that she had not previewed, that was not part of Western's audiovisual collection, and that had not been approved for instructional use by Arrojo or his designee. In doing so, she failed to employ sound teaching practices and methods. Respondent violated the directive in policy 4008(B)(3) to infuse responsibility in the classroom, by failing to adequately prepare for her class, and, consequently, showing nude, sexually explicit images that were inappropriate for her students to view. Because it is determined that Respondent violated provisions of rules 6A—5.056 and 6A—10.081, and school board policy 6100, it is found that she also violated school board policy 4008(B)(8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order determining that just cause exists to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days, without pay. DONE AND ENTERED this 21st day of January, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2020.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of July, 2003.
The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2008.
The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged acts of misconduct set forth in an Administrative Complaint. In the six-count Administrative Complaint it is charged that the Respondent violated three specific statutory provisions and three specific rule provisions.
Findings Of Fact The Respondent holds Florida Educator's Certificate 355910, covering the areas of Spanish, Supervision, and Social Science, which is valid through June 30, 2002. At all times material to this case, the Respondent was employed as a Social Studies teacher at Hammocks Middle School in the Miami-Dade County School District. The Respondent first became employed as a teacher at the Hammocks Middle School on or about 1984. At Hammocks Middle School the Respondent taught sixth, seventh, and eighth grade American History. He also taught Geography to sixth graders as part of the Bilingual Content Curriculum Program. As of April 1999, the Respondent had been employed by Miami-Dade County Public Schools for approximately twenty-five years. The Respondent had never been the subject of any disciplinary action by his employer or by the Education Practices Commission at any time prior to April 1999. The Respondent has been a naturist since approximately 1971. The Respondent belongs to a local naturist organization and subscribes to naturist publications. On April 26, 1999, between 7:00 a.m. and 7:30 a.m., before the start of the school day and while there were no students in his classroom, the Respondent executed an Internet search by typing the word "naturism" into the search engine on his school-provided computer. Of the several "hits" resulting from the search, a website entitled Forste side af ialt 6 Naturistsider, caught the Respondent's attention because it appeared to have the word "naturist" in its foreign title. The Respondent "clicked" on and accessed the Forste side af ialt 6 Naturistsider website. On April 26, 1999, the Respondent viewed the website for about one minute and "bookmarked" the site. The Respondent did not access the website again on April 26, 1999, at any time. On April 27, 1999, before the start of the school day and while there were no students in his classroom, the Respondent accessed the site Forste side af ialt 6 Naturistsider via the "bookmark" he had created on April 26, 1999. On that day, the Respondent exited the website before any students arrived at his classroom for his first period class. On the same day, during his third period planning period, while no students were present in the classroom and while the door to his classroom was closed, the Respondent again accessed the Forste side af ialt 6 Naturistsider website. The Respondent left the accessed naturist site on his computer at the end of the planning period but he covered the site by opening his electric gradebook over it. The Respondent did not view the website during the fourth period. During the last ten minutes of the fifth period on April 27, 1999, the Respondent entered student grades into his electronic gradebook while clicking on and viewing some of the photographs from the Forste side af ialt 6 Naturistsider website. Students were present in the classroom but there is no evidence that any student saw naturist photographs on the Respondent's computer monitor during the fifth period. During his sixth period class on April 27, 1999, the Respondent viewed some more naturist photographs on the Forste side af ialt 6 Naturistsider site while grading geography projects at his desk. The Respondent's geography students were working on an in-class vocabulary assignment. The Respondent's computer monitor was facing away from his students and images on the monitor could not be seen by the students while they were at their desks. However, during the course of the Respondent's sixth period class on April 27, 1999, several of the students had occasion to approach the Respondent's desk or to otherwise be in a position to see the monitor on the Respondent's computer. Several of those students were able to see photographic images of nude people on the monitor, even though the Respondent made efforts to cover the monitor when students approached his desk. Shortly after the end of the sixth period on April 27, 1999, several of the students reported to the school administration that they had seen photographs of nude people on the Respondent's computer. An investigation was promptly initiated; written statements were obtained from the students, and the Respondent's classroom computer was removed and locked in a secure place until it could be examined. The photographs of nude people that were seen on the Respondent's computer monitor during his sixth period class on April 27, 1999, were all photographs from the Forste side af ialt 6 Naturistsider website.3 The photographs from that website depict nude men, women, and children of various ages engaged in a variety of outdoor recreational activities such as sunbathing, walking on the beach, sitting or standing by a swimming pool, swimming, boating, and water skiing. The photographs from that website do not depict any acts of sexual intercourse, any acts of sexual touching, or any acts suggestive of sexual conduct. None of the photographs from that website include any sexual innuendo, nor could any of them be fairly described as provocative. Specifically, none of the photographs from that website were obscene or pornographic. But all of the photographs from that website were distinctly inappropriate for display to sixth grade students in a geography class. Examination of the computer that was removed from the Respondent's classroom revealed that the computer had been used to gain access to the Forste side af ialt 6 Naturistsider website. During the course of the investigation, the Respondent admitted that he had viewed that website during his sixth-grade class on April 27, 1999. Examination of the computer also revealed that it had been used to gain access to other websites that contained images of a sexually suggestive or sexually explicit nature. However, there is no clear and convincing evidence that the Respondent was the person who gained access to the websites that contained sexually suggestive or sexually explicit images.4 There is no clear and convincing evidence that, in the words of the statute, the Respondent "has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board."5 The Respondent's act of having photographs of nude people displayed on his computer monitor on April 27, 1999, created a condition harmful to learning, as well as potentially harmful to the mental health of the students. That act also exposed students to unnecessary embarrassment. That act was also a use of institutional privileges for personal gain or advantage. On or about August 25, 1999, the Respondent was terminated from his position with the Miami-Dade County School Board.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered to the following effect: (a) dismissing the charges in Counts 1 and 2 of the Administrative Complaint; (b) finding the Respondent guilty of the violations alleged in Counts 3, 4, 5, and 6; and (c) imposing as a penalty an administrative fine in the amount of five hundred dollars ($500.00), and a suspension of the Respondent's certificate for a period of six (6) months. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. 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 16th day of May, 2001.
