The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against Petitioner based on his race and national origin.
Findings Of Fact Mr. Chery, a black male who was born in Haiti, began working for the School Board in August 2007 as a school bus driver. Beginning in August 2008, Mr. Chery’s bus schedule was 4:55 a.m. to 9:00 a.m. and 2:00 p.m. to 5:30 p.m. He was paid for eight hours of work. His early morning route started at 4:55 a.m., when he picked up students to take to the fuel pump in Haines City. The early morning route ended at 6:00 a.m. His next route began at 6:10 a.m. and ended at 7:15 a.m., when he delivered students to the high school. The last portion of the morning route began at 7:30 a.m. and ended at 9:00 a.m., when he delivered students to elementary and middle schools. Mr. Chery’s afternoon route began at 2:00 p.m., when he picked up high school students and took them home until 3:00 p.m. Beginning at 3:00 p.m., Mr. Chery picked up students at Eastside Elementary School and transported them until 4:15 p.m. At 4:15 p.m., Mr. Chery picked up students at Boone Middle School and transported them until 5:30 p.m. Mr. Chery’s pay was calculated based on the time that he picked up his first student in the morning until he reached the school to drop off the students and the time that he reached the school in the afternoon until the time the last student was dropped off. One and one-half hours were added to the travel time to compensate for cleaning the bus and doing paperwork. On August 26, 2008, Mr. Chery was arrested. The arrest was a case of mistaken identity and Mr. Chery was released. After he was released, Mr. Chery felt uncomfortable working his early morning route and asked his supervisor, Jeffery Davis, to relieve him of his duty to drive the early morning route from 4:55 a.m. to 6:10 a.m. Mr. Jeffery Davis thought that Mr. Chery meant that he needed a couple of weeks to get over being arrested, and he accommodated Mr. Chery by getting another driver to take the early morning route. Although Mr. Chery was not required to drive his early morning route, he continued to receive the same compensation that he received when he did drive the early morning route. A couple of weeks after the early morning route was removed, Mr. Chery advised Mr. Jeffery Davis that he did not want to resume the early morning route. Mr. Jeffery Davis told Mr. Chery that a new Verification of Assigned Route Time Form, referred to as a Golden Rod, would need to be completed to show the driving times of his various routes.2 Mr. Chery submitted a Golden Rod, which still reflected his early morning route that he was no longer driving. The Golden Rod which Mr. Chery submitted showed that his morning route ended at 9:00 a.m., when it actually ended at 8:45 a.m., and showed that his afternoon route ended at 5:00 p.m., when it actually ended at 4:45 p.m. Mr. Chery was requested to submit another Golden Rod, which he did. The second submittal also contained similar inaccuracies. In mid October 2008, Mr. Chery’s pay was cut to reflect the deletion of the early morning route. Mr. Jeffery Davis completed an accurate Golden Rod for Mr. Chery. The form reflected that Mr. Chery picked up his first student in the morning at 6:10 a.m. and dropped the students off at Ridge Community High School at 6:40 a.m. At 6:40 a.m., Mr. Chery picked up five students at Ridge Community High School and transported them to Haines City by 7:00 a.m. His next run began at 7:25 a.m., when he picked up students to transport to Horizon Elementary, where the students were delivered at 7:50 a.m. At 7:50 a.m, Mr. Chery started his Lake Alfred Middle School route. The first middle school student was picked up at 7:55 a.m., and the students were delivered to Lake Alfred Middle School by 8:45 a.m., at which time Mr. Chery went off the clock. The afternoon route began at 2:00 p.m. when Mr. Chery picked up students at Ridge Community High School. The last high school student was delivered by 2:40 p.m. The next route began at 3:00 p.m., when Mr. Chery picked up students at Horizon Elementary. The last student from Horizon Elementary was dropped off by 3:30 p.m. The last route for the afternoon began at Lake Alfred Middle School at 3:45 p.m., and the last student was dropped off at 4:45 p.m. An attendant rode the Lake Alfred Middle School bus, and Mr. Chery dropped the attendant off at Walgreen’s pharmacy, which is less than ten minutes away from the last student drop off. The amount of time that Mr. Chery worked was seven hours, which included the time for cleaning the bus and doing his paperwork. Mr. Chery was unhappy that his pay was cut, and he requested a meeting with Mr. Jeffrey Davis’ supervisor, Rob Davis, concerning the amount of pay he was receiving. Mr. Chery, Mr. Chery’s wife, Mr. Rob Davis, and Mr. Jeffery Davis met on December 10, 2008, to discuss the pay issue. Mr. Rob Davis asked Mr. Chery to complete a time verification form for five days, showing the time that he spent each day from the time he picked up the first student in the morning until the time he dropped off the last student. Mr. Chery and Mr. Rob Davis met again on December 18, 2008. Mr. Chery had not filled out a time verification form for five days. Mr. Rob Davis told Mr. Chery to complete a new Golden Rod, reflecting the time that he was currently driving. Mr. Chery failed to complete a new Golden Rod. Mr. Chery requested a meeting with Fred Lee Murphy, who was the assistant superintendent for Support Services and Facilities and Operations for the School Board. His duties included managing the transportation system for the School Board. In January 2009, Mr. Murphy met with Mr. Chery and requested that Mr. Chery complete a current and accurate Golden Rod. Mr. Chery refused to do so, and his employment was terminated for insubordination. Mr. Chery claims the School Board paid white bus drivers for eight hours, when the white bus drivers were working only seven hours, and that he was being treated differently because he was black and from Haiti. He bases his claim on hearsay conversations that he had with some white bus drivers. No non-hearsay evidence was presented to show that white bus drivers were being paid for eight hours of work, when they were working seven hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Chery’s Petition for Relief. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 3rd day of December, 2009.
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of May, 2006.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On February 5, 1982, respondent was preparing to administer to his students a math test which had begun the day before. While passing out the tests, respondent announced to the class that there was to be no more talking and that anyone who did talk would be sent to the Dean's office. In a voice described as "loud" and "smart-alecky," student John Lindsay said "What?" Respondent told student Lindsay to leave the room. Lindsay replied that he would not leave the room without a referral slip. Respondent told Lindsay he would not give him a referral slip because he could not be trusted with one. On other occasions, respondent had sent Lindsay to the Dean's office with a referral slip and neither Lindsay nor the referral slip reached the office. Lindsay did not leave the room at that time. Respondent was seated at his desk attempting to watch his students who were taking the test and also write passes for other students who were going to another room to study. Lindsay came up to respondent's desk and demanded a pass or a referral slip. Respondent told Lindsay to "get out of my face," meaning to convey that Lindsay was obstructing his vision of the students who were taking the test. Lindsay replied that he did not want to be in respondent's "ugly face anyway." At this point, some students in the class began to laugh. Lindsay apparently returned to a desk located in front of the respondent's desk, and respondent continued to write passes and watch the students who were taking the test. As respondent was writing referrals or passes, student Lindsay came up quickly to respondent's desk with his arm extended to pick up the referral slip. Respondent rolled back in his chair, rose and quickly grabbed for the referral slip on his desk at the same time Lindsay was reaching for it. As respondent did this, his chair slid backward and his desk moved forward. Lindsay moved his head backward and respondent's hand lightly brushed Lindsay's left shoulder with no damage resulting to the student. Lindsay thereafter turned toward the class and laughingly said "did everybody see that now." Respondent reached for a button which calls the Dean's office and Lindsay left the room with another student. The students who witnessed the incident from various positions in the room observed a swinging action with a fisted hand directed toward Lindsay by the respondent, who appeared to be angry at the time. This testimony is not inconsistent with the testimony that respondent was rising from his chair and grabbing for a piece of paper at the same time that student Lindsay was standing in front of his desk and reaching for the same piece of paper. It is the policy at Lakewood Senior High School that when a student is sent to the Dean's office, the teacher is to send a disciplinary referral slip with the student. On occasions, a student is sent first and the referral slip follows. Corporal punishment is to be administered only by the school principal or his designee and only in the presence of another adult. Respondent Ponsell P. Howell is 62 years old and has been a mathematics teacher for over 19 years. He has never been charged with or accused of striking a student. He plans to retire from teaching at the end of this school year.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges against respondent of misconduct in office be DISMISSED. Respectfully submitted this 24th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982. COPIES FURNISHED: William Borja, Esquire Suite 204 501 South Fort Harrison Clearwater, Florida 33516 Lawrence D. Black, Esquire 152 Eighth Avenue South West Largo, Florida 33540 B. Edwin Johnson, Esquire 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518
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 The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment as a grounds custodian based upon his absence from work without approved leave.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is the governing body of the local school district in and for Seminole County, Florida. Lake Mary High School is a school within Petitioner's district. The School Board employs custodial staff to maintain the facilities and grounds of the schools within the district. Respondent was first employed by the School Board as a custodian in 1999 or 2000. Most recently, Respondent was "reappointed" for the 2002-03 school year under a 12-month contract. Respondent's employment with the School Board is governed by the Official Agreement Between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc. (NIPSCO) and the School Board of Seminole County, most recently amended on August 6, 2002 [hereafter "NIPSCO Agreement"]. Among other things, the NIPSCO Agreement specifies the types of leave available to employees such as Respondent as well as the consequences for being absent from work without approved leave. Respondent was the custodian or groundskeeper responsible for maintaining the exterior grounds of Lake Mary High School, including the parking lots and the athletic fields. Respondent's immediate supervisor was Scott Underwood, the Assistant Principal at Lake Mary High School. Mr. Underwood's supervisor was Boyd Karns, Jr., the principal at Lake Mary High School. As the principal, Mr. Karns is ultimately responsible for the supervision of the personnel at Lake Mary High School. On or about August 1, 2002, Respondent requested vacation/annual leave for the period of August 19 through 30, 2002. The request was made to Mr. Underwood. Mr. Underwood initially discouraged Respondent from taking vacation on those dates because they were close to the start of the school year and the school grounds needed to look good for upcoming events such as the "open house" which marked the beginning of the school year. The athletic fields also needed to be prepared for upcoming sports events. As the school's groundskeeper, Respondent was primarily responsible for the condition of the school's exterior grounds. Respondent insisted on taking vacation on those dates and, despite his initial reservations, Mr. Underwood ultimately recommended approval of Respondent's request for vacation leave. Mr. Karns approved that recommendation. On or about August 22, 2002, while he was on vacation leave, Respondent submitted a written request for additional leave for the period of September 3 through September 19, 2002. He requested personal leave without pay for that period. The reason given by Respondent for his request for additional leave was that he wanted to help his sister open her business which was located in another state, although that may not have been the "real" reason for the request. If that additional leave had been granted, it would have resulted in Respondent being on leave for a period of five weeks -- August 19 through September 19, 2002 -- and the school being without its groundskeeper for that same period. That absence would have created a hardship for the school because Respondent was primarily responsible for the condition of the school grounds and that period coincided with the beginning of the school year when it was especially important that the school grounds look good. On August 23, 2002, Mr. Underwood spoke to Respondent by telephone about his request for additional leave. Mr. Underwood told Respondent that he was recommending that the request be denied for the reasons noted in the preceding paragraph. Mr. Karns concurred in that recommendation and Respondent's request for the personal leave without pay was denied. During the August 23, 2002, telephone conversation, Mr. Underwood expressly told Respondent that he was expected to return to work on Tuesday, September 3, 2002, since his approved vacation leave ended on Friday, August 30, 2002, and Monday, September 2, 2002, was Labor Day. Respondent did not appear for work on September 3, 2002, or any point thereafter. He did not contact Mr. Underwood or Mr. Karns on September 3, 2002, or at any point thereafter regarding his absence. Based upon Respondent's absence from work on September 3, 2002, without authorization and in violation of Mr. Underwood's direction to him on August 23, 2002, Mr. Karns recommended to the Superintendent of the School Board that Respondent's employment be terminated. By letter dated September 5, 2002, the Superintendent informed Respondent that he was recommending that the School Board immediately suspend Respondent without pay and that the School Board thereafter terminate Respondent's employment. The letter informed Respondent of his right to appear at the School Board meeting where the suspension recommendation would be considered as well as his right to request an administrative hearing on the recommended termination. The School Board considered the matter at its meeting on September 10, 2002. The School Board accepted the Superintendent's recommendation and suspended Respondent without pay effective September 11, 2002. The record does not reflect whether Respondent appeared at the School Board meeting to contest the suspension. On September 25, 2002, Respondent timely requested an administrative hearing "with regard to the recommendation for termination of [his] employment." As a result of that hearing request, Respondent's employment status remained (and still is) suspended without pay. The record does not include any evidence of prior disciplinary action taken against Respondent by the School Board. Respondent was provided due notice of the time, date, and location of the final hearing in this case, but he failed to appear at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 17th day of April, 2003.
The Issue Did the Polk County School Board have just cause to justify its termination of Respondent's employment?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary and adult education in Polk County, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent Stephen Anderson has been employed in the Polk County School District for five years. Prior to his employment with the Polk County School District, Respondent taught school in the State of Massachusetts for 22 years. Respondent has a professional services contract of employment with the Polk County School District. At all times pertinent to this proceeding, Respondent was a GED classroom instructor and work study coordinator at Bill Duncan Opportunity Center (Duncan Center). During Respondent's tenure at Duncan Center, his classroom responsibilities ended at 11:00 a.m., after which he acted as work study coordinator until the end of his workday at 3:15 p.m. However, at times Respondent's coaching duties at other schools required that he leave Duncan Center before the end of the workday. On April 11, 1996, sometime between 12:00 noon and 1:00 p.m., Respondent left Duncan Center for the purpose of going to Lake Gibson High School (Lake Gibson) to sign award certificates for members of the Lake Gibson girls' basketball team that he coached. The award certificates were to have been presented at the banquet earlier that week, but the certificates were not delivered to the banquet for Respondent's signature as planned. Therefore, Respondent made arrangements to be at Lake Gibson between 1:30-1:45 p.m. in the afternoon of April 11, 1996, to sign the certificates. Throughout his tenure at Duncan Center, Respondent had routinely left Duncan Center early to attend to his coaching responsibilities at Lake Gibson and another school where he had coached basketball earlier. Greg Bondurant, principal of Duncan Center, was fully aware of Respondent's practice of leaving Duncan Center early to attend to his coaching duties, which included times before and after the basketball season at Lake Gibson, notwithstanding the testimony of Greg Bondurant regarding times before and after the basketball season to the contrary, which I find lacks credibility. Furthermore, Respondent advised his teacher's aide, John R. Edwards, that he was leaving early the day in question for the purpose of going to Lake Gibson. Although Respondent did not sign out on the afternoon of April 11, 1996, it appears from the record that signing out was not a procedure that either Respondent or other teachers at Duncan Center took seriously. In fact, Mr. Bondurant was aware that teachers at the Duncan Center were not signing out on a regular basis. Apparently, "signing out" was not a major concern at Duncan Center. Upon leaving Duncan Center, Respondent proceeded down Reynolds Road in the direction of Highway 92. Upon arriving at Highway 92, Respondent turned right (east) on Highway 92 intending to go to Wizard Golf Store to possibly purchase a golf club. Upon approaching Wizard Golf Store, Respondent noticed a "closed" sign in the window, and did not stop. Thereafter, Respondent proceeded east on Highway 92 to the next left turn, which is Saddle Creek Road, intending to go through to Combee Road, which would take him to Lake Gibson. However, at this point, Respondent developed an urgent need to urinate. Since sometime around June 1995, Respondent has suffered severe problems with his urinary tract, and has suffered from severe abdominal pains caused by an intense feeling of a need to urinate frequently. Respondent has difficulty in beginning the urine flow, as well as stopping the urine flow, which has resulted in Respondent urinating on himself on different occasions. At times, Respondent was required to stroke (milk) or shake his penis in order to start or stop the flow of urine or to drain the urine from his penis after urinating. Robert Bevis, M. D., specializes in internal medicine, and has treated Respondent for his urinary tract problems since February, 1991. Dr. Bevis believes that Respondent could be required to stroke the shaft of his penis to empty his urinary tract. Dr. Bevis has treated Respondent with a variety of drugs, which have not been successful, and believes that surgery may be necessary. Upon turning onto Saddle Creek Road, Respondent looked for a place to urinate. Although he saw the bait shop, Respondent did not attempt to go to the bait shop to urinate because it did not occur to him that the bait shop would have a public bathroom. Respondent did not see a portable public toilet across from the bait shop on Saddle Creek Road or anywhere else. While there was testimony of a portable public toilet being in the area four days after the incident, the portable public toilet had been removed prior to the hearing, and there was no evidence that the portable public toilet was present on April 11, 1996. Respondent proceeded on down Saddle Creek Road for approximately six tenths of a mile to an area of Saddle Creek Park that Respondent believed to be isolated, and would provide the necessary privacy. Respondent pulled into an area where he saw no cars or people. This area of the Saddle Creek Park is commonly referred to as the Point. Unbeknown to Respondent at that time, the Point is an area of the park known by law enforcement officers and others in the community to be frequented by homosexuals seeking to engage in lewd activity. Respondent exited his car and walked up a path with the intention of urinating. As Respondent walked up the path, he passed a male individual who was standing with his back toward Respondent just off the pathway, approximately 20 feet. Respondent did not talk to, or have any contact with, this individual, but proceeded on up the path pass this individual, following the path as it curved to the left, out of the individual's line of sight. Upon reaching this area, Respondent unzipped his pants, took out his penis, and, after some time, began to urinate. As Respondent looked to his left he noticed a male individual come around the corner and stop. Respondent did not recognize this individual as the individual he had seen earlier because he had not seen that individual's face. Respondent stared at this individual because he was shocked to see this individual, and uncertain as to why the individual was there. Respondent then did what he needed to do to stop the flow of urine, placed his penis in his pants and zipped his pants. At that point the individual had walked away from Respondent back down the path. As Respondent walked back down the path he noticed a vehicle pull up parallel to his vehicle. Respondent moved on down to the area where he saw the first individual. Although Respondent could see two individuals in conversation, one standing outside the vehicle and the other individual inside the vehicle, Respondent was partially secluded by a thicket. Not sure of what was going on, but still feeling the intense urge to urinate, Respondent began urinating while watching the two individuals over his right shoulder. After Respondent finished urinating, he did what he needed to do to drain his penis of urine and zipped his pants. At that point, the two individuals were approaching Respondent. The individuals identified themselves as undercover police officers and placed Respondent under arrest, charging him with two counts of exposing his sexual organs and two counts of lewdness. The charges were predicated on the officers' belief that Respondent was masturbating. The arrest occurred at approximately 1:30 p.m. Respondent was released later that day on his own personal recognizance. Respondent protested his innocence to the arresting officers, explaining to the officers his problem with urinating, but was told that he was in the wrong place at the wrong time, and that they were arresting everything that moved. Although the testimony of the police officers is not totally accepted, it is not found that their testimony was pure fabrication. Rather, it is found that, due to their mindset and expectations, the police officers misinterpreted much of the conduct they observed involving the Respondent on April 11, 1996. On that day, the police officers were patrolling Saddle Creek Park, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual) activities for which Saddle Creek Park, specifically the Point, had become notorious to law enforcement and to others. The police officers involved in this case expected users of park to know its reputation, and they expected to find homosexual men using the park for notorious purposes. As a result, knowing nothing about Respondent, they misinterpreted innocent behavior of the Respondent as evidence of criminal conduct. They attributed little or no importance to the behavior of Respondent that was evidence of his innocence of criminal charges. There is no evidence in the record of what became of Respondent in the criminal process after his arrest. The headlines of the newspaper articles appearing in the Lakeland Ledger and the Tampa Tribune concerning the undercover operation and subsequent arrests were: Corrections superintendent charged in sting and Warden arrested in sex sting, respectively. The Respondent's arrest is covered in each article at the end of the article on the follow-up page. Apparently, the Correction Superintendent's arrest was more newsworthy than Respondent's arrest. Greg Bondurant, Paul Wenz and James Lemanski, the principal and two teachers at Duncan Center, respectively, all concluded that Respondent's effectiveness as a teacher at Duncan Center had been seriously reduced or impaired by the notoriety of this incident. Their conclusions were reached on the basis of shock and disbelief, by students and teachers alike, that Respondent had been arrested; "jokes made and stuff about Saddle Creek Park, and stuff like that"; and that "everybody became the brunt of jokes." These witnesses considered this a normal reaction for students and teachers alike. Greg Bondurant testified that after a couple or three days "everything died down after that." Some members of Greg Bondurant's church questioned him about what was going on at Duncan Center. However, there was no direct testimony from students or members of the community, outside the school system, to support these witnesses' conclusion that Respondent's effectiveness as a teacher had been seriously reduced or impaired. Respondent has been married for 30 years and has one child 29 years of age. Respondent was an exemplary employee for 22 years in Massachusetts, and has been an exemplary employee for the past five years in Polk County. Respondent was the 1994-95 teacher of the year at Duncan Center. Respondent denies he is homosexual or bisexual, and claims he has never engaged in any homosexual behavior. The evidence supports those claims. Respondent's wife has never witnessed Respondent engage in any homosexual behavior. Many of Respondent's friends testified that Respondent is a man of high moral character, and none has ever witnessed Respondent engage in any immoral or illicit behavior. James Dean, principal at East Area Opportunity School in Polk County and past principal at Duncan Center during the first part of Respondent's tenure there, has had a personal and professional relationship with Respondent for five years. Dean considers Respondent to be a man of high moral character and given the opportunity would hire Respondent to teach at his school. There is no evidence in the record from any member of the community unrelated to Petitioner to support the Petitioner's conclusion that Respondent's effectiveness has been impaired or has been seriously reduced. On the other hand, several members of the community, some of them fellow teachers, believe that Respondent was an excellent teacher up to the incident and would continue to be an excellent teacher if reinstated. Furthermore, these members of the community believe that Respondent's effectiveness as a teacher in the community has not been impaired or seriously reduced, and if reinstated he would be an asset to the school system and to the community. From all accounts, Respondent is an excellent teacher. Taken together, the evidence is clear that on April 11, 1996, the Respondent entered Saddle Creek park for the express purpose of relieving himself because of an intense desire to urinate caused by a prostate problem. Respondent's manner of starting and stopping the urine flow and the clearing of his penis of urine after urinating was also necessary due to his prostate problem. Furthermore, there was no intent on the part of Respondent, while in Saddle Creek Park on April 11, 1996, to expose or exhibit his sexual organ in a vulgar or indecent manner. Likewise, the evidence is clear that Respondent's effectiveness as a teacher has not been seriously reduced or impaired as a result of the Respondent's arrest on April 11, 1996. Furthermore, the record will not support a finding that Respondent left his worksite early without authorization on April 11, 1996. Petitioner's evidence failed to prove the allegations filed against Respondent. The ultimate findings of fact are based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officers. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn if Respondent engaged in, or had a reputation for engaging in, the kind of conduct of which he was accused.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay. RECOMMENDED this 28th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Honorable John A. Stewart Superintendent of Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Donald H. Wilson, Jr., Esquire 150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578 Mark Herdman, Esquire 34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
The Issue Whether Respondent violated sections 1012.795(1)(g), and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(c)1.,1 as alleged in the Administrative Complaint and, if so, the appropriate penalty. 1 Unless otherwise noted, all citations to the Florida Statutes and the Florida Administrative Code are to the 2017 versions in effect at the time of the alleged violations.
Findings Of Fact Respondent holds Florida Educator’s Certificate 784361, covering the areas of Educational Leadership, Emotionally Handicapped, English for Speakers of Other Languages (ESOL), Physical Education, School Principal, and Specific Learning Disabilities, which is valid through June 30, 2021. Since 2001, Respondent has held a number of positions with Citrus County Schools, including positions as an ESE teacher, dean of students, assistant principal, and principal. At the time of the hearing, Respondent was working as an ESE teacher at Citrus Springs Middle School. During the time period pertinent to the allegations in the Administrative Complaint (the 2016-2017 school year), Respondent was employed as an assistant principal at Crystal River Middle in Citrus County Schools. Respondent began as an assistant principal at Crystal River Middle in 2015. At Crystal River Middle, Respondent worked closely with the ESE department, the ESE teachers, aides, paraprofessionals, and Cori Boney, who was the ESE specialist for Crystal River Middle. Ms. Boney had worked throughout Citrus County in a number of ESE- related positions before starting at Crystal River Middle in 2011 or 2012 as the ESE specialist. As the ESE specialist, Ms. Boney was responsible for preparing the individual education plan (IEP) paperwork for ESE students, mentoring the ESE teachers, preparing schedules for the ESE paraprofessionals, and working with the families of ESE students. According to Respondent, Ms. Boney was the “go-to” person to find out whether the proper educational and behavioral strategies were being appropriately carried out for ESE students in accordance with their IEPs. Respondent described Ms. Boney as “a guru professionalist, the know-it-all, that tells us when these things [IEP requirements] are happening and when they’re not.” Ms. Boney was considered part of the administrative team. Respondent did not supervise Ms. Boney. At the beginning of the 2016- 2017 schoolyear, administrators were provided a list of employees they supervised and evaluated. On that list, the principal of Crystal River Middle, Inge Frederick, was listed as Ms. Boney’s supervisor. Respondent never evaluated Ms. Boney’s performance, did not provide input on her evaluations, and did not collaborate with the principal on Ms. Boney’s evaluations. Respondent had no authority to discipline Ms. Boney and was not responsible for recommending whether Ms. Boney’s employment contract should be renewed each year. 2 In 2016, Respondent’s relationship with Ms. Boney became more than just a professional relationship. In May 2016, Respondent had double knee surgery. Ms. Boney called him and asked how he was doing. During school administrative meetings held in the early part of the 2016-2017 school year, the subjects of conversation between Respondent and Ms. Boney, as well as other school administrators and staff, would stray away from the business of education to television shows and other casual conversations that were not related to the business of education. Afterwards, Respondent and Ms. Boney would sometimes exchange text messages regarding TV shows. In some of those text messages Ms. Boney would give her opinion as to whether certain actors were handsome, and comment on other non-education related subjects. Over time, the texting and conversations between Respondent and Ms. Boney became more personal, involving subjects regarding Ms. Boney’s former husband, the people she was dating, and clothing she would wear. Respondent also gave Ms. Boney advice regarding her son, who was having trouble at school. Respondent talked to Ms. Boney’s son about how to make better decisions and, at least once, at Ms. Boney’s request, stopped by Ms. Boney’s house to talk to her son. 2 Section 1012.34(3)(c) provides in pertinent part, “The individual responsible for supervising the employee must evaluate the employee’s performance.” Having become somewhat familiar, on one occasion, Respondent told Ms. Boney while they were at school that he knew “her secret.” When he explained to her that he meant he could see her underwear under her clothing, she was embarrassed. But it did not cause an argument or disagreement between them. Respondent and Ms. Boney’s relationship became intimate in the fall of 2016. At the time, Ms. Boney was in a relationship with someone else and Respondent was married. In September 2016, Respondent stopped by Ms. Boney’s house, and while there, he gave her a kiss. It surprised Ms. Boney, but she did not protest. Later, after initially resisting suggestions from Respondent that they should lay together and that nothing would happen, Ms. Boney finally gave in. Contrary to Respondent’s suggestions that nothing would happen, they ended up having sex. After that, Respondent and Ms. Boney met and engaged in sexual intercourse on a number of occasions. Traveling in separate cars, they spent the night together at a motel in Tallahassee on November 23, 2016, and again during the weekend of April 7 through 9, 2017. They also met for two afternoons at a Quality Inn in Crystal River. On another occasion, they met at Respondent’s house. On Valentine’s Day, February 14, 2017, Respondent gave Ms. Boney a tanzanite bracelet. Their affair lasted until sometime in April 2017, when Ms. Boney decided to end it. Their relationship was consensual. While Ms. Boney testified that Respondent was resistant to Ms. Boney’s decision to end the affair and thwarted her attempts to limit contact with him, that testimony, in light of their continued relationship, is unpersuasive. Moreover, the evidence does not show that Respondent used his position as an assistant principal to either begin the affair or resist its end. Ms. Boney and Respondent continued to be friends after the affair. Ms. Boney sought a job in Marion County because she wanted a leadership position. Her application for the position in May 2017 lists Respondent as a reference. In approximately July 2017, Ms. Boney was hired for a new administrative position in Marion County as an ESE coordinator. Around the same time, Respondent was promoted to assistant principal at Crystal River High. Ms. Boney continued her friendship with Respondent. In July 2017, she stopped by Respondent’s office at Crystal River High and brought Respondent a gift. She visited him on more than one occasion at Crystal River High that year. When, in August 2017, Ms. Boney decided to move to Marion County, she asked Respondent for his assistance and Respondent helped her pack for the move. Throughout the 2017-2018 school year, Respondent and Ms. Boney remained friends and exchanged e-mails. On August 24, 2018, Ms. Boney sent a message to Respondent that said, “You can call my office anytime.” Less than 30 days later, in September 2018, Ms. Boney’s boyfriend, Josheau Fairchild, used an application on Ms. Boney’s cell phone and extracted text messages exchanged between Ms. Boney and Respondent evidencing their affair during the 2016-2017 school year. Mr. Fairchild angrily confronted Ms. Boney and demanded that she explain the relationship. When confronted, and at the final hearing, Ms. Boney portrayed her relationship with Respondent in a light most favorable to her. Although admitting her relationship with Respondent was consensual, she portrayed herself as always being uncomfortable with the relationship and trying to end it. Specifically, Ms. Boney testified that she repeatedly tried to stop the relationship, blocked Respondent on her cell phone, and texted Respondent to stop texting her. Ms. Boney further testified that she left Citrus County Schools for a position with the Marion County School District because Respondent made her feel alienated from other staff. Ms. Boney’s testimony in that regard is not credible and inconsistent with evidence clearly showing that Respondent and Ms. Boney had a friendly and cordial relationship before Mr. Fairchild extracted the text messages in question. Those text messages demonstrate that the relationship between Respondent and Ms. Boney was mutual and consensual. They provide no evidence that Ms. Boney was uncomfortable with their relationship or attempted to block off communications with Respondent prior to Mr. Fairchild’s discovery of the text messages. Notably, it was Ms. Boney’s boyfriend, Mr. Fairchild, who, after discovering the text messages, first contacted Citrus County School’s human resources department to complain about Respondent. At the time, Ms. Boney was no longer working for Citrus County Schools and her affair with Respondent had ended well over a year before the complaint. Although the evidence clearly showed that Respondent and Ms. Boney had an affair, it was insufficient to show that Respondent’s past relationship with Ms. Boney during the 2016-2017 school year reduced his effectiveness or ability to perform his duties. Rather, the evidence demonstrated that Respondent satisfactorily performed all of his job duties during the 2016-2017 school year. Both Respondent and Ms. Boney received final summative performance ratings of “Effective” and “Highly Effective,” respectively. The following year, Respondent was promoted to the position of assistant principal at Crystal River High for the 2017-2018 school year. Respondent received an “Effective” final summative performance evaluation for the 2017-2018 school year. Subsequently, Respondent was promoted to the position of principal at Crystal River Middle, the position he held when Ms. Boney’s boyfriend extracted the subject texts in the fall of 2018, which revealed Ms. Boney’s affair with Respondent that had ended over a year before. In addition to the allegation of the affair itself, the Administrative Complaint alleges, “When questioned about the incident, Respondent first admitted to the sexual relationship with the teacher. During the same interview, Respondent lied, and denied having a sexual relationship with the teacher.” Respondent was first questioned by the school district regarding his affair with Ms. Boney during a meeting held at the school district’s office on October 5, 2018, between Respondent, Suzanne Swain, and Brendan Bonomo. Respondent believed the meeting was going to be about an unrelated matter. Ms. Swain instead advised Respondent that complaints had been filed against him by both Joshua Fairchild and Cori Boney. At the time, not believing he would need representation, Respondent waived his right to representation. When told of Ms. Boney’s accusations at the onset of the meeting, Respondent became angry and hurt. He thought about the injustice of Ms. Boney’s allegations and how hard he had worked to obtain his position as a principal. He was upset and “not with it,” during the meeting. The evidence is unclear whether, during that meeting on October 5, 2018, Respondent was provided with the text messages that Ms. Boney’s boyfriend had extracted. According to Respondent, during that meeting, he admitted sending text messages to Ms. Boney of a sexual nature, but denied having sexual intercourse with her. In contrast, according to the testimonies and written statements signed by both Ms. Swain and Mr. Bonomo, Respondent first admitted and then denied having a sexual relationship with Ms. Boney. The interview was not recorded. At that October 5, 2018, meeting, Mr. Bonomo typed up a statement for Respondent stating: During the time that Cori Boney was under my supervision there was no sexual intercourse but there were inappropriate text messages. Respondent signed the typed statement under an acknowledgement stating that “I find the above statement to be true and correct. I certify that I have read it or it has been read to me.” Both Ms. Swain and Mr. Bonomo signed the typed statement as witnesses. On November 2, 2018, Respondent attended another meeting with Ms. Swain and Mr. Bonomo during which Respondent was given an opportunity to respond to evidence gathered during the school district’s investigation. At that meeting, Respondent was allowed to review the text messages extracted from Ms. Boney’s phone. The school district’s attorney, Tom Gonzalez, was also at the meeting. During the meeting, Respondent denied having a sexual relationship with Ms. Boney, denied giving her a tanzanite bracelet, and denied meeting her at hotels. Respondent reiterated these denials during his testimony at the final hearing. Then, at a later meeting with Ms. Swain and Mr. Bonomo held on November 14, 2018, Respondent was told that his employment as principal of Crystal River Middle was going to be terminated. To that, Respondent said something to the effect of, “After 20 years that’s it, I’m done?” Ms. Swain responded by asking Respondent whether he was requesting a position. When Respondent said yes, Ms. Swain left the room. When Ms. Swain returned, she told Respondent that he would be able to secure a position with Citrus County Schools if he drafted a written admission statement. Ms. Swain influenced the content of Respondent’s statement. She told Respondent that the statement would have to say that he had an inappropriate sexual relationship with Ms. Boney while he supervised Ms. Boney at Crystal River Middle. Respondent dictated a statement to Mr. Bonomo and Mr. Bonomo typed the statement for Respondent to sign. The statement, which was dated and signed by Respondent on November 14, 2018, states: Ms. Himmel and the Executive Team, I am formally requesting an instructional position with Citrus County Schools. I acknowledge that I had an inappropriate relationship with Cori Boney during the time she was an ESE Specialist at Crystal River Middle School while I was the Assistant Principal at Crystal River Middle School and I supervised Ms. Boney. I am remorseful for my actions and I want to extend my heartfelt apologies to Mrs. Himmel and the entire Crystal River Community. I appreciate Mrs. Himmel consideration with this request. Sincerely, /s/ Charles Brooks, Jr. After submitting his written statement, Respondent was offered, and he accepted, a position as an ESE teacher at Citrus Springs Middle. Respondent received an “Effective” final summative performance evaluation for his position as an ESE teacher for the 2018-2019 school year. Despite the fact that Respondent, in essence, was demoted from his position as a school principal to a classroom teacher, the Commissioner seeks a two-year suspension of Respondent’s educator’s certificate. A two-year suspension would result in Respondent’s loss of his current position and cause him significant hardship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that Respondent did not violate section 1012.795(1)(g), Florida Statutes, and dismissing the allegations of the Administrative Complaint in that regard, and further finding that Respondent violated section 1012.795(1)(j), Florida Statutes, by failing to maintain honesty in all professional dealings as required by Florida Administrative Code Rule 6A-10.081(2)(c), but not imposing any further discipline against Respondent or his educator’s certificate, other than the demotion he has already received from the Citrus County School District. DONE AND ENTERED this 20th day of October, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 The central issue in this cause is whether the Respondent, Nelson Lopez, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year, Respondent attended Miami Lakes Junior High School in Dade County, Florida. Respondent (date of birth: 6-27-72) was enrolled in the seventh grade prior to being notified of the administrative assignment to the Jan Mann Opportunity School North. Respondent's grades for the first two grading periods of the 1986-87 school year were as follows: COURSE ACADEMIC GRADE EFFORT CONDU Mathematics 1st F 3 F 2nd F 3 F Physical 1st F 3 F Education 2nd F 3 F Industrial 1st F 3 F Arts Education 2nd F 3 F Language 1st F 3 F Arts 2nd F 3 F Foreign 1st F 3 F Languages 2nd F 3 F French Science 1st F 3 F 2nd F 3 D GRADE SYMBOLS: "F" UNSATISFACTORY EFFORT CONDUCT CONDUCT "3: "D" "F" INSUFFICIENT IMPROVEMENT NEEDED UNSATISFACTORY CT Respondent was administratively assigned to the opportunity school on February 3, 1987. Respondent did not enroll at the opportunity school and did not attend classes. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Lakes Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the 1986-87 school year Respondent caused five Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of these referrals is attached and made a part hereof. On November 3, 1986, Respondent was suspended from school for a period of three days as a result of his leaving campus without permission. On November 17, 1986, Respondent was suspended from school for a period of four days as a result of his defiance of school personnel. Emmitt Reed is an industrial arts teacher at Miami Lakes Junior High School in whose class Respondent was enrolled. While in Mr. Reed's class, Respondent was persistently disruptive Respondent was habitually tardy and would wrestle, throw objects, and talk loudly. Mr. Reed attempted, without success, to modify Respondent's behavior. Mr. Reed was unable to reach Respondent's parents. David Wilson is a physical education teacher in whose class Respondent was enrolled. Respondent did not complete assignments and did not dress out to participate with the class. Respondent left the physical education area without permission on several occasions. Mr. Wilson took Respondent to a counselor for guidance, but efforts to improve Respondent's performance were unsuccessful. Elena Casines is a social studies teacher in whose class Respondent was enrolled. Respondent did not complete class or homework assignments, and habitually came to class unprepared. Respondent was so disruptive in Ms. Casines' class that she had to interrupt teaching to take him to the office. These interruptions were frequent, and he would talk so loudly that she could not conduct class. Frank Freeman is an assistant principal at Miami Lakes Junior High School. Mr. Freeman attended a child study team conference. The purpose of the conference was to determine proper placement for Respondent. The team consisted of school personnel familiar with Respondent's academic record and disruptive behavior. The team recommended placement at an opportunity school. Respondent's student record does not suggest he is a "special student." There is no record that Respondent's parents requested special testing for their son. Mr. Lopez, at the hearing, requested that his son be tested as a special student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School North and direct that, in accordance with the parent's request, the student be immediately tested for any special or exceptional learning program needs. DONE and ORDERED this 3rd day of November, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 3rd day of November, 1987. SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE 10/30/86 disrupting class; attempted walking halls; talking parent excessively; leaving contact but class w/o permission unsuccessful 11/04/86 left campus w/o three day permission police suspension caught and returned 11/17/86 defiance of Four-day school personnel 12/01/86 skipping attempted parent contact 02/11/86 continuing ten-day defiance suspension APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1089 Rulings on Proposed Findings of Fact submitted by Petitioner: 1. Accepted. (See Finding paragraphs 1 and 2). 2. Accepted. Paragraph 3. 3. Accepted but unnecessary. 4. Accepted. See paragraph 6. 5. Accepted. See paragraph 6. 6. Accepted. See paragraph 7. 7. Accepted. See paragraph 8. 8. Accepted. See paragraph 8. 9. Accepted. See paragraph 5 and Synopsis. Accepted. See paragraph 9. Accepted. See paragraph 10. Accepted but unnecessary. The credible evidence of the witnesses testifying discredited the "reports" accepted as Respondent's exhibit 1 and 2. Accepted but unnecessary. Accepted but unnecessary. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Raul A. Cossio 2542 Southwest 6th Street Miami, Florida 33135 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
