Findings Of Fact At all times pertinent to the Administrative Complaint, Respondent held Teacher's Certificate #123157 (Petitioners' Exhibit #1). In 1980-1981, Respondent was employed as an elementary school teacher at Cove Elementary School ("Cove") in Belle Glade, Palm Beach County, Florida. Respondent had been employed at Cove for approximately ten years and in 1980-1981 taught second grade. In 1976-1977, Respondent had been cautioned for inflicting corporal punishment on students without following the statutory guidelines and school board policies. At the beginning of the 1980-1981 school year, Respondent was accused of inflicting corporal punishment on her second grade students. Respondent was cautioned by her principal, who restated the policies of the Palm Beach School System to the Respondent. These policies were consistent with Section 232.27, Florida Statutes. On or about February 10, 1980, Respondent struck Buster Brockman, an eight-year-old second grade student, in the head with an automobile fan belt. This caused an injury to the child's face about his left eye. The Respondent also threw Brockman against a table, bruising his ribs. Brockman was treated at the emergency room and released. This incident occurred in Respondent's classroom without an adult witness and without the prior permission of her principal. Respondent was severely cautioned by her principal. In March of 1981, Respondent stuck Tony Aunspaugh, Jr., an eight-year- old second grade student, with an automobile fan belt across the right thigh. The blow left a dark welt/bruise on the boy's thigh. Respondent struck Aunspaugh in her classroom without an adult witness and without her principal's permission. Respondent was again cautioned by her principal. On or about May 29, 1981, the Respondent struck Reyes Reyes and another boy, both students in her second grade class, several times on the back with an automobile fan belt. The blows left dark welts/bruises on their backs. Respondent was suspended on this occasion, pending the school board's action. At all times during the 1980-1981 school year, the West Palm Beach School Board's policy regarding corporal punishment was that before corporal punishment could be administered to a student, the principal was to be advised and was to give permission, and the punishment was to be administered by the principal or the principal's designee before an adult witness who was a member of the staff. On none of the several occasions Respondent struck students did she adhere to this policy. The investigation which followed the Respondent's suspension brought to light other incidents of Respondent having struck children which had not been known to the school administration previously. Various students of Respondent testified about being struck by her during the 1980-1981 school year. Their collective testimony was that Respondent had engaged in inflicting corporal punishment during the entire school year in a manner contrary to the school board's rules and the statutory requirements. Notice of the subject hearing was provided the parties as required by the statutes and rules. The Education Practices Commission introduced Petitioner's Exhibits #1 through #5, which were received in evidence.
Recommendation Having found the Respondent guilty of violating Section 231.28, Florida Statutes, the Hearing Officer recommends that the Education Practices Commission revoke Respondent's teaching certificate and, further, that recertification be considered only upon a demonstration by Respondent that she is fully rehabilitated. DONE and ORDERED this 26th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of March, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301 Mrs. Audrey Clark 1213 Vaughn Circle Belle Glade, Florida 33430 Donald L. Griesheimer, Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Nicholas DiLorenzo be expelled from schools within the jurisdiction of the Palm Beach County school system through the 1984 - 1985 school year. RECOMMENDED this 15 day of October, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of October, 1984.
The Issue The issue presented for decision in this case is whether Petitioner, the Pinellas County School Board (the "School Board"), should discipline Respondent, a teacher at Palm Harbor University High School ("Palm Harbor"), for classroom discussions provoked by the Columbine High School tragedy.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Since August 1994, Respondent has been employed as a high school classroom teacher by the Pinellas County School Board. During the 1998-1999 school year, Respondent taught world history, economics, honors economics, and law studies at Palm Harbor. He was also an assistant coach for the junior varsity football team. Prior to becoming a teacher, Respondent spent 15 years in the United States Air Force. During his military career, Respondent received extensive counter-terrorist training, including an individual terrorism awareness course aimed at instructing students on how to teach others to limit their vulnerability to terrorist selection and attack. Respondent came to teaching through the Department of Defense’s "Troops to Teachers" program, in which the military assists placement of retiring soldiers by paying a portion of their teacher salaries. On April 20, 1999, two students at Columbine High School in Littleton, Colorado, killed twelve of their fellow students and one teacher. The incident received massive press coverage. Pinellas County school administrators anticipated that the events at Columbine would be a matter of discussion in the schools the next day. Dr. Hinesley, the Superintendent of Pinellas County Schools, testified that his office made a "general communication" to all principals reminding them to have a safety plan and to calm the fears of parents and students. He testified that he left it up to the individual principals to decide whether to meet with their faculties to discuss a coordinated response to questions regarding Columbine. Bill Williamson, the Area I Superintendent directly responsible for Palm Harbor, testified that putting together a cohesive message for teachers to give students regarding Columbine was "an alternative," but that some individuals would have questioned the wisdom of a "boilerplate" message. Alec Liem, the Principal of Palm Harbor, testified that he made no communication to his teachers on the morning of April 21, 1999, as to how they should discuss Columbine with their students. He testified that the teachers are professionals and he expects them to teach their classes with the appropriate judgment, without specific direction from the principal. Mr. Liem testified that it was important for him as a school leader to present the issues to the school and discuss them openly. He went on the school’s closed circuit television system on the morning of April 21 and acknowledged that a tragedy had occurred on a high school campus in Colorado. He told the students that it was important they respect each other and recognize their differences as strengths, not weaknesses. He encouraged them to broaden their circles of friendship, to work closely with him to monitor safety on the campus, and to be "part of the solution and not part of the problem." Mr. Liem testified that his announcement was intended to set the tone for the day. He assumed that teachers would "follow that leadership in the classroom and provide opportunities for those types of discussions in the classroom." Respondent taught five periods of classes on April 21, 1999. He testified that there was no discussion of Columbine during first period, though he called for a moment of silence for the families after the Pledge of Allegiance. Respondent stated that the students in his second period class were "abuzz" over Columbine as they entered the classroom, and he therefore believed he should address the issue before commencing the day’s world history lesson. Respondent testified that this class was more inquisitive than the first, and asked many questions about events at Columbine. One student asked, "What’s a pipe bomb?" Respondent stated that another student piped up to give the address of an Internet site containing instructions on making pipe bombs. Respondent cut off the second student before he could give the address, saying, "We don’t need to do that. A pipe bomb is very devastating." Respondent testified that he told the students they need not be afraid of pipe bombs, because the investigation is likely to reveal that someone at Columbine knew what these students were up to and didn’t report it. He instructed his students to "keep a thumb on the pulse of people around you," to listen for threatening statements or hate sayings, to observe whether someone spends an inordinate amount of time on the Internet or reading "Soldier of Fortune" type publications, to note when "you see something like a pipe laying there" in someone’s house, and to report such things to school authorities. At this point, the students asked, "How will we know? What does a pipe bomb look like?" Respondent drew a simple sketch of a pipe bomb on the board. The drawing showed a pipe with caps on both ends, and a tail on one end representing a fuse. Respondent told the students that if they see a fellow student working on something that looks like this, they should report it. A student next asked what makes this device so deadly. Respondent answered that the maker will put "nails or something" in the pipe to do harm. He told the class that if they noticed someone taking a piece of pipe with end caps and packing it with nails or tacks "and possibly black powder," then they should report it. Respondent testified that his statements could not be termed "instructions" on how to construct a pipe bomb. He testified that he does not know how to construct a pipe bomb. He also stated that neither his drawing nor his discussion dealt with detonating devices such as blasting caps. The "fuse" he drew on the board was merely illustrative, not the means to actually detonate such a device. Respondent testified that nothing he said could be taken as encouragement to construct a pipe bomb. He emphasized to his students the extreme danger involved in dealing with explosives and that the most likely victims of pipe bombs are the people constructing them. A student then said that if someone threw a pipe bomb into the cafeteria at Palm Harbor, he would run from it. Respondent told the class that "terrorists don’t work that way. Terrorists will find where we’re most vulnerable to pre-place the bomb and then try to get you to circle in that area to detonate it." The students asked specifically about vulnerable areas of Palm Harbor, inquiring as to where they should look for bombs. Respondent spoke generally about being aware of their surroundings, and notifying the teacher if they walk into a classroom and see, for example, a backpack that doesn’t belong there. While emphasizing that the best protection is to spot a bomb before it has been placed, Respondent discussed the vulnerable areas of Palm Harbor: the library, the cafeteria, and the portable classrooms located in an open field behind the school. Respondent stated that the portables were a particular concern because the student population is evacuated to that area during fire drills or bomb threats. Respondent testified that the sketch of the pipe bomb may have stayed on the board for the remainder of the day. He testified that discussions similar to that held in second period also occurred during his fourth and fifth period classes. Respondent stated that none of these discussions lasted for more than five minutes, and that he completed his planned lesson in each of his five classes on April 21, 1999. Respondent testified that his purpose was to protect his students from harm. He believed the best way to do this was to empower them with knowledge of things they should look for around them, warning signs of the kinds of activities that culminated in the Columbine tragedy. His students were aware of his military background, and naturally came to him with technical questions regarding the previous day’s events. Respondent testified that he did not really think that all of his students were now able to go out and spot someone building a pipe bomb, but that "now they feel better knowing that they know how these people work, and they feel safe at school." On April 22, 1999, Robert Heinz, an Assistant Principal at Palm Harbor, received an anonymous phone call from a woman identifying herself as the parent of a Palm Harbor student. The caller told Mr. Heinz that Respondent had shown the class how to construct a pipe bomb and told the class that the most devastating impact on the school could be achieved by placing the bomb in a portable classroom, pulling the fire alarm to cause the students to assemble in the area of the portables, then detonating the bomb. Mr. Heinz reported the phone call to Mr. Liem, who instructed him to call the Office of Professional Standards ("OPS") and get specific directions on how to proceed. Mr. Heinz called OPS and spoke with Martha O’Howell, who is one of two OPS staff members who investigate allegations of employee misconduct and make recommendations as to discipline. Ms. O’Howell instructed Mr. Heinz to inform the School Resource Officer ("SRO"), the Pinellas County Sheriff’s Deputy assigned to Palm Harbor. Ms. O’Howell also contacted the SRO, Deputy David Webb. Deputy Webb contacted his superior, Sergeant John Davis, Jr., and told him he did not wish to conduct the investigation because it involved a teacher with whom he worked on a daily basis. With Sergeant Webb’s consent, Deputy Webb handed the investigation over to Deputy Peter Kolnicki, a substitute SRO who was scheduled to work at Palm Harbor on April 23, 1999. Deputy Webb phoned Deputy Kolnicki on the evening of April 22 to brief him on the matter. Deputy Webb provided Deputy Kolnicki with a list of students in Respondent’s classes. Deputy Webb highlighted certain names on the list as the best students to interview about the incident. Deputy Kolnicki stated that Deputy Webb believed these students "would be more truthful than others in the class." Deputy Kolnicki’s written report provides his summation of interviews with eleven students conducted on April 23, 1999. The student list provided by Deputy Webb contains handwritten notes by Deputy Kolnicki next to the names of more than eleven students, but the names of those students are mostly illegible. The written report indicates that five of the eleven students did not see a sketch of a bomb or hear Respondent discuss placement of a bomb during class, though one of the five stated that he heard from other students that Respondent drew a diagram of a bomb on the blackboard at some point during the day. The other six students generally corroborated Respondent’s version of events. Some of the students’ written statements were riddled with spelling and grammatical errors. In the interest of readability, the undersigned has corrected the more egregious errors without notation. Student E.A. wrote: The class was talking about the Colorado shooting and saying that the guys must have been pretty smart to make bombs. Some kids said no, anyone can make a bomb and you can find out from anywhere on the internet. We were all talking and saying that anyone who had the resources could make one. Coach Falls drew a sketch of a pipe bomb on the board because a student asked what one was. He explained what happened when one blew up. I didn’t think anything of the whole conversation. Coach treats us like adults and we carry on conversations all the time. To me, this was just a bunch of people talking about a big situation. He also said that a smart place to put it would be out by the portables. Student M.B. wrote: All I know is that Coach Falls drew a drawing on the board of a pipe bomb to show how easily kids have accessibility to it and how easy it was for kids to make it and anyone could do it. He did talk of where would be a good place to put one, but no one took it as serious talk. He wasn’t teaching us where to put a bomb, he was just showing how kids misinterpret things and how we need to catch them right away. (He said to put it in the portables.) Student M.D. wrote: Coach Falls was telling us how anyone who got mad enough had the resources to be able to make a home bomb. He was telling us how it wasn’t hard to find the information on how to build one. He then drew a diagram of the kinds of things that could be used to build one. I personally didn’t think anything of it. He said that the place to put it would be a portable. The three statements quoted above are similar not just in content but in form. Of particular note is the fact that each student mentions placing the bomb in the portables only parenthetically at the end of her statement. This fact leads to the inference that Respondent’s discussion of bomb placement made little impression on these three students, and that Deputy Kolnicki had to jog their memories at the conclusion of their statements to obtain any mention of this discussion. Student C.D. wrote as follows: On 4-21-99, Mr. Falls was discussing the events in Littleton, Colorado, the day before. The discussion turned to the bombs used in the assault. Mr. Falls told how the main part of the bomb was made, he also drew a diagram. He told how shrapnel was placed in the bottom of the casing, then the black powder and topped with more shrapnel and finally sealed with a fuse. Mr. Falls went further to say that most deaths associated with pipe bombs occurred during assembly. He also told us the most effective location would be one of the portables. He finished with telling us the consequences of even being in possession of bomb making materials and that plans (even for an atom bomb) could be found on the internet. Mr. Falls also added that the only reason he felt it necessary to demonstrate this was it was history in [the] making and we should know more about what happened in Colorado and we should be equally informed of the problems at hand. Deputy Kolnicki’s written report concluded as follows: Each student spoke very highly of Coach Falls and said that he was the most popular teacher on the campus. All of the students said that they did not believe Falls was trying to give them ideas on how to make a bomb or [where] to place it, but was simply trying to educate them about the Colorado incident and drew the diagram so that should a student come across such a device, they would recognize it and notify the faculty. Deputy Kolnicki testified that in his opinion it was a good idea to educate students about the existence of bombs and where to look for them. He testified that, based on his conversations with the students, he had no reason to believe that Respondent was doing anything other than trying to help his students protect themselves. Mr. Liem, the Principal of Palm Harbor, testified that his understanding of the facts was based on his reading of the police report and meetings with Respondent. He did not speak directly with the students. Mr. Liem stated that Respondent’s actions raised great concerns about the safety of the school and students, and created an atmosphere on campus that could exacerbate the existing climate of fear in the aftermath of Columbine. He was concerned with the potential for "planting seeds" with impressionable students by discussing the components and placement of pipe bombs in such detail. Mr. Liem was especially concerned that the discussion occurred in more than one class, an indication that Respondent was initiating the discussion rather than responding to student questions. Mr. Liem testified that Respondent put the students at risk of harm, though he did not believe such was Respondent’s intention. He testified that it is inappropriate under any circumstances to draw a diagram of a pipe bomb. Mr. Liem stated that it would be sufficient to tell the students that a pipe bomb is an explosive device in a pipe, without going into great detail. He stated that a student could be made aware of what a pipe bomb looks like without being instructed in its components. Ms. O’Howell similarly testified that the School District’s concern was not the fact that pipe bombs were discussed in the context of Columbine, but that "the specificity of the conversation went too far. It wasn’t necessary, the components of the pipe bomb, the how-to placement." She stated that discussion of placement of bombs in the portables was not "a necessary part of an awareness discussion." Unlike Mr. Liem, Ms. O’Howell testified that the sketch drawn by Respondent was acceptable. She stated that her discussions with Respondent led her to believe that he discussed placement of the bomb in the portables in the context of "doing maximum damage," and that Respondent did not mention having discussed bomb placement in other locations. Ms. O’Howell discussed Pinellas County Schools’ "Disciplinary Guidelines for Employees," Board Policy 8.25, which Respondent allegedly violated. She agreed that, of the 26 separate offenses listed in the policy, Respondent was charged with violating only Policy 8.25(1)(v), "Misconduct or Misconduct in Office." She disagreed that this is a "catch-all" offense, but conceded that "misconduct" is nowhere defined in the policy, and that the term is applied essentially on a case by case basis. Mr. Williamson, the Area I Superintendent, based his understanding of the facts on his review of the police report and the students’ written statements, as well as discussions with other administrators. He did not speak to Respondent or anyone else with direct knowledge of the events in the classroom. Mr. Williamson concurred with the recommendation that Respondent receive a ten-day suspension without pay. His chief concerns were that the remarks were "ill-timed" in light of the Columbine events, with the potential for encouraging "copycat" crimes, and that the conversations appeared to be teacher directed because they occurred in more than one class. He agreed that the drawing of the bomb was itself unobjectionable, but that discussion of the components of a pipe bomb and its placement for maximum impact were entirely inappropriate because "Mr. Falls does not know the mental state of every student in his class." Mr. Williamson testified that he received no phone calls complaining of Respondent’s actions, but that he was approached by two members of the School Board at a breakfast meeting. These School Board members told him they had heard complaints that this was "an outlandish kind of conversation to have, period, much less following the tragedy that occurred at Columbine." Mr. Williamson did not state whether the complaints had come from persons with first hand knowledge of what happened in Respondent’s classroom. Dr. Hinesley, the Superintendent, testified that he did not believe Respondent was trying to teach his students how to build a bomb, "but the outcome . . . could have very easily been that." Like the other administrators, Dr. Hinesley saw no problem in a teacher conducting a general "safety awareness" discussion of pipe bombs, but was disturbed by the detail and specificity of Respondent’s discussion as it was reported to him. Dr. Hinesley testified that his recommendation for discipline was based on the report he received from Mr. Liem, with which he concurred, and on the fact that Respondent appeared to show no remorse for his actions. Dr. Hinesley recommended a ten-day suspension in part by analogizing this case to cases in which students make threats. In both situations, he stated, the primary concern is that statements were made that presented a threat to the safety of students. Dr. Hinesley made no mention whether he considered the disciplinary guidelines for employees found in Pinellas County Schools Policy 8.25(3) in recommending discipline for Respondent. In summary, it is found that Respondent conducted his discussion with the intent of teaching his students to protect themselves. No evidence was presented to contradict Respondent’s statements in this regard. Indeed, most of the administrators who testified conceded that Respondent’s intentions were salutary. Nonetheless, it is found that the administrators’ concerns with the impact of the discussion were rational and well taken. While the evidence indicates that all of the students interviewed took Respondent’s presentation as he intended it, Mr. Williamson correctly pointed out that Respondent could not know the mental state of every student in his classroom. Respondent himself conceded that "I don’t know if a kid, when they leave my class for World War II, if they realize how bad the Nazis were or if these guys, in their own little demented mind, might go out and think, 'Hey! White power!'" Respondent simply expressed the hope that his students understood the context of his message, but admittedly did not know whether some student might make pernicious use of the information imparted in those discussions. The administrators also acknowledged that Columbine was an unprecedented event. In the immediate aftermath, no uniform response was provided by the Superintendent to the principals, and Mr. Liem in turn left the response to the individual teachers. Mr. Liem’s statement to the student body on the morning of April 21, 1999, while sounding the noble sentiment of reaching out and broadening circles of friendship, plainly was no answer to the practical questions students were asking. It was only natural that Respondent’s students, aware of his military background and training, would come to him for answers. With the best intentions, Respondent provided more technical detail than was necessary to answer those questions. Several of the administrators observed that Respondent’s actions were more egregious because they were so "ill-timed" in light of Columbine. It is found that Columbine plainly triggered the classroom discussions. Just as plainly, the fear generated by Columbine triggered the administration’s heavy handed response, which evinced less interest in understanding the context of the classroom discussion than in quickly and harshly punishing Respondent. Respondent testified that students came to him and told him that Deputy Kolnicki’s "interviews" consisted of sitting them down and asking two questions: "One, did you draw a pipe bomb on the board, and, two, did you mention the word 'portables?'" This is probably a subjective overstatement of Deputy Kolnicki’s actions, but is partially corroborated by the fact that three of the students’ written statements mention "portables" only as a parenthetical afterthought, at the obvious prodding of their interlocutor. Respondent also testified that at his four meetings with Mr. Liem and Ms. O’Howell, they appeared more interested in forcing him to express remorse and accept his punishment than in learning his version of events. Respondent also testified that he was not informed of his right to representation until the end of the second meeting with Ms. O’Howell and Mr. Liem. Ms. O’Howell disputed this statement, saying Respondent was informed of his rights prior to the second meeting. Even if Ms. O’Howell’s version of events is credited, the fact remains that one interrogation occurred without Respondent’s being informed of his right to representation. Dr. Hinesley’s basis for recommending a ten-day suspension was arrived at by likening Respondent’s statements to overt threats made by students. This reasoning is irrational even if one concedes that "student safety" is a concern in both instances. Dr. Hinesley’s logic would result in equivalent discipline being administered to a student threatening to bomb the school and a teacher providing information to students in an overzealous effort to teach them to protect themselves from a bomb. The two situations are not comparable. In conclusion, it is found that Respondent’s drawing and discussion of the construction of a pipe bomb and his discussion of the logistics of bomb placement did indeed go beyond what was necessary to ease the fears of his students after Columbine. It is also found that the administration of Palm Harbor and Pinellas County Schools overreacted to the situation in a similar effort to ease the fears of the public after Columbine. Once it was reported that, on the day after the Columbine tragedy, a teacher had shown students how to construct a pipe bomb and where to place it, the actual facts of the situation appear to have mattered less than swift and relatively harsh punishment of the alleged offender.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, in that he failed "to exercise the best professional judgment" as required by Rule 6B-1.001(2), Florida Administrative Code, and failed to make a reasonable effort to protect students from conditions harmful to their physical safety as required by Rule 6B-1.006(3)(a), Florida Administrative Code; and ordered that a written reprimand be placed in Respondent’s personnel file. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. 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 11th day of February, 2000. COPIES FURNISHED: Jacqueline M. Spoto, Esquire Pinellas County School Board 301 4th Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Jr., Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770
The Issue Whether the Petitioner committed the violations alleged in the Respondent's Petition dated June 11, 2008, 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 duties of operating, controlling, and supervising all free public schools within the School District of Palm Beach County, Florida. Art. IX, § 4(b), Fla. Const; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Scott has been employed as a teacher with the School Board since 1986. She is a member of the Palm Beach County Classroom Teachers Association and is subject to the terms of the Collective Bargaining Agreement Between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association ("Collective Bargaining Agreement"). At the times material to this proceeding, Ms. Scott taught business classes at Palm Beach Central High School ("Palm Beach Central"). In 2006, Ms. Scott was charged with shutting a student into a windowless, unventilated closet and leaving him there "for a time estimated to be between ten (10) minutes by you and fifty (50) minutes by the student and other witnesses."2 The superintendent of schools recommended to the School Board that Ms. Scott be suspended without pay and her employment terminated. The termination was subsequently rescinded, and Ms. Scott's discipline for this incident was reduced to a 38-day suspension without pay. During fourth period on February 1, 2008, Ms. Scott was teaching a course in computing for colleges and careers. While she was taking attendance, several students were causing their computers to "beep." As a result, Ms. Scott sent a few students outside the classroom, into the hallway. She sent another student to the storage room that connected her classroom to the classroom next to hers and told the student to step inside and shut the door. The student was a male who was 17 years of age at the time of the final hearing. The storage room was approximately 10 feet wide and 15 feel long. The student remained in the storage room for approximately 10 minutes, during which time the lights in the storage room were off. The storage room had two doors, neither of which had windows, and Ms. Scott could not see the student while he was in the storage room. After approximately 10 minutes, Ms. Scott opened the storage room door and told the student he could leave the storage room.3 The student did not consider his being sent into the dark storage room a "big deal," and he did not report the incident to his parents, to another teacher, or to the school administration.4 On February 15, 2008, a student reported the incident to a teacher, who reported it to an assistant principal, who reported it to another assistant principal, who reported it to the principal, Burley Mondy. Mr. Mondy reported the matter to the School Board police and requested that a formal investigation be initiated. Mr. Mondy also removed Ms. Scott from the Palm Beach Central campus on February 15, 2008, and she was given an alternate assignment in the Palm Beach County School District's office. After the investigation was completed, the matter was subject to an administrative review; a pre-disciplinary meeting was held with Ms. Scott in attendance; and the matter was reviewed by the School Board's Employee Investigation Committee. Based upon the recommendation of the Employee Investigation Committee, the superintendent of schools recommended to the School Board that Ms. Scott be suspended without pay and that proceedings be initiated to terminate her employment. The School Board approved this recommendation at its June 4, 2008, meeting. The evidence presented by the School Board is sufficient to establish that, by sending a student into a dark storage room for approximately 10 minutes, Ms. Scott exercised extremely poor professional judgment and that her actions posed a potential risk to the student's physical and mental health and safety. The School Board failed to present any evidence to establish that Ms. Scott's sending several students into the hall during class constituted poor professional judgment or posed a potential risk to the students' physical and mental health and safety. The School Board also failed to present any evidence to establish that Ms. Scott's effectiveness in the school system was impaired by the incident at issue, and it is not reasonable to infer from Ms. Scott's conduct that her effectiveness was impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order dismissing the Petition filed against Rutha Scott, immediately reinstating her, and awarding her back pay for the period of her suspension, as provided in Section 1012.33(6)(a), Florida Statutes. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 February, 2009.
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S 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 21st day of November, 2003.
The Issue At issue herein is whether or not the Petitioner, Dade County School Board (sometimes referred to as School Board or Board), carried its burden of proof to sustain its suspension and requested dismissal of the Respondent, Bernice Schlecker, on grounds of alleged incompetency, willful neglect of duty and/or gross insubordination as set forth and defined in Subsection 231.36(6), Florida Statutes. Also at issue is whether or not the Respondent breached her employment contract with the Petitioner and is therefore subject to dismissal based on her refusal to be examined by a psychiatrist approved by the School Board.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the arguments of counsel, 1/ the following relevant facts are found. Based upon a recommendation by the Superintendent, the School Board of Dade County, Florida, suspended the Respondent, Bernice Schlecker, from her employment as a teacher at Shadowlawn Elementary School on May 24, 1978. Respondent has been employed as a teacher for approximately seventeen (17) years. The Board further proposed to dismiss the Respondent based on its contention that she is unable to impart an education to her students; exhibited a lack of control over students during her classes; failed to prepare lesson plans; used poor judgment respecting the disciplining of students; failed to carry out School Beard plans and policies; failed to submit to a requested psychiatric examination and was excessively absent from her teaching position. This case was initiated with the Division of Administrative Hearings based on Respondent's request for a hearing on the matter of her suspension and the Petitioner's proposed dismissal. For the two school years immediately preceding her suspension, Mrs. Schlecker was absent from her duties with the School System more often than she was present. In this regard, answers to Interrogatories indicate that the Respondent was absent for a total of approximately twelve (12) days from August to January 3 during the 1976-77 school year and that she requested and was granted a leave of absence on January 4 through the end of the school year in June of 1977. During the 1977-78 school year, Respondent was absent a total of approximately one hundred (100) days. The testimony of several of Respondent's supervisors during the two- year period prior to her suspension indicates that Respondent often reported for work late; that she often left early or during the workday sometimes with and other times without permission from her supervisors. The primary causes of Respondent's absences during the two years prior to her suspension was back pain, anxiety and depression. Dr. Lester A. Russin, Respondent's orthopedic surgeon, testified that he did not foresee Respondent's back problem improving much because she refused to follow medical advice. Additionally, Respondent's personnel records reflect that she suffered from a psychiatric disorder which is of a long-standing nature. School System administrators testified during the hearing that Respondent's chronic absenteeism results in additional expenditures for the School System inasmuch as substitute teachers are needed when absences are occasioned by an illness warranting sick leave with pay. Additionally, the administrators indicated that the educational program is disrupted when the regular classroom teacher is absent. Respondent's co-workers testified that she was continuously unable to control her students' conduct during classes. Respondent's supervisors opined that this lack of control was in large part due to Respondent's lack of organization and failure to prepare lesson plans. Although required to prepare and follow lesson plans, evidence reveals that often Respondent prepared inadequate plans or no plans whatsoever. Efforts on the part of the School System to assist Respondent in her areas of weakness were unavailing. For example, during the 1977-78 school year up until her suspension, Respondent was assigned to Shadowlawn Elementary School. Dr. David Felton, Principal; Ms. America Bermudez, the Assistant Principal; and two teachers from the school testified that her classes were totally out of control most of the time. Testimony in the case indicates that students jumped in and out of windows and left the classroom at will. A group of students repeatedly crawled under Respondent's portable classroom and lit matches. Respondent often called upon other staff members to control her class or to supervise her class while she left, and the noise level emanating from Respondent's classroom was often loud enough to distract other teachers. In this regard, a faculty advisory committee made up of Respondent's coworkers vehemently complained about Respondent to the Principal. Members of the advisory committee voiced their concern that the students in Respondent's classroom were in physical jeopardy as well as being deprived of an education due to Respondent's lack of classroom control. During this period, Respondent requested assistance from the central office in bringing her class under control or to remove unruly students. Such requests were complied with by the administration. Additionally, the administration of Shadowlawn Elementary School attempted to assist Respondent by advising her of methods to improve her instruction and classroom control. To further this end, Respondent was requested to draft detailed plans and to submit these to Assistant Principal Bermudez for review. According to Ms. Bermudez, Respondent, although complying with her request to submit the plans, did not fully comply inasmuch as the plans were not at all detailed. Ms. Bermudez testified that several other recommendations made by her were met by tearfulness, hysteria and other nonproductive conduct and acts by Respondent. Nearing the end of the school year, Dr. Felton and Respondent agreed that she should receive assistance from an expert teacher. To achieve this, Ms. Evelyn Looney was called in to assist. Ms. Looney's testimony is that she found Respondent's classroom in total havoc and that Respondent often appeared "spaced out". Ms. Looney noted that Respondent left the classroom while she was showing her how to teach a lesson. Based on her observation and recommendations of Respondent, Ms. Looney opined that Respondent was an incompetent teacher and would not benefit from any amount of remediation. Subsequent visits to Respondent's classroom by Ms. Bermudez and Principal Felton revealed no improvement in Respondent's lesson presentation or classroom control. Approximately one-half of Respondent's first grade class at Shadowlawn were retained the following year. In this regard, Respondent contended that her class was larger then normal in the assignment of pupils with behavioral and other learning disabilities. However, first grade teacher Nancy Sturtz testified that when she taught the same students the following year, she found that although they were initially disruptive, they quickly calmed down and responded to instructions. For the three years preceding Respondent's assignment to Shadowlawn, she was employed at North Beach Elementary School. For the last two years of this period of time (1975-76 and 1976-77), her principal was Dr. Amy Dansky. Dr. Dansky initially assigned Mrs. Schlecker to assist other teachers by tutoring all groups rather than to teach an entire class. This tutorial function had been performed by Respondent during the 1974-75 school year. Respondent's fellow teachers unequivocally advised Dr. Dansky that Respondent was more disruptive than helpful and they refused offers of assistance from her. During the spring of 1976, a sixth grade teacher at North Beach became ill and requested leave. Respondent was assigned to take over her classroom. Dr. Dansky's testimony is that Respondent lacked any classroom control and that turmoil was rampart during the period in which Respondent stood in for the ill teacher. At the conclusion of the 1975-76 school year, Dr. Dansky had a conference with the Respondent and together they worked out a program whereby Respondent would improve her performance for the upcoming school year (1976-77). Respondent was assigned to the sixth grade class for this school year and Assistant Principal Gwendolyn Grant was assigned to assist her. Although Respondent was requested to submit lesson plans at North Beach, she often failed to do so and on those occasions when plans were submitted, they were often deficient. Respondent's behavior at North Beach was similar to her behavior at Shadowlawn and attempts to assist her were met with the same inappropriate, unproductive responses. Ms. Dena Feller, an instructor who was situated across the hall from Respondent, testified that Respondent's classroom was generally in havoc and that on two occasions she was required to run into Respondent's classroom and remove two different students from second story windows from which they were about to jump. Ms. Feller was also required to bring Respondent's class back under control on many occasions and finally complained to Dr. Dansky about the situation. In addition to the complaints by other teachers, parents of students at North Beach also complained and, based on such complaints, Dr. Dansky removed twelve (12) students from Respondent's classroom. Respondent also contends that at North Beach she was assigned a disproportionate number of students with discipline and other behavioral problems. In this regard, the testimony of other witnesses dispute Respondent's claim. During the preceding year, Respondent was assigned as a reading teacher under the supervision of Leonard Greenbaum. Respondent was assigned to work as a team teacher and during this time other team members complained to Mr. Greenbaum respecting Respondent's failure to carry her share of the workload. Based thereon, Respondent was assigned to tutor. Initially during the 1973-74 school year, Respondent was assigned to Floral Heights Elementary School. The Principal, Ms. Rowena Sutton, testified that Respondent worked well supervising small groups but that her absences and tardiness coupled with crying, inordinate amounts of time spent on the telephone resulted in her (Ms. Sutton's) request that Respondent be reassigned from Floral Heights. Respondent was next assigned to Flagler Elementary School although she failed to report on the designated date. Again, Respondent's work hours were erratic and she often reported tardy or left the building early, without permission. While at Flagler, Respondent failed to prepare lesson plans and while it was evident that she spent a great amount of time preparing to teach, she never was able to impart any instructions to students. Ms. Wood, the Principal at Flagler Elementary School, advised Mr. Greenbaum that Respondent was not considered an asset to the school. Respondent was next assigned to Douglas Elementary School. The Principal, Mr. Donald Oliver, observed Respondent's classroom on numerous occasions and he testified that Respondent's classroom was, in general, chaotic and that Respondent, while expressing familiarity with the materials, was never able to teach the students during his observance of her class. At the conclusion of the 1973-74 school year, Mr. Greenbaum did not recommend Respondent to continue as a reading teacher. Respondent's personnel file reflects that she has taught at approximately ten (10) schools during the seventeen (17) years that she has taught in Dade County, and her annual evaluations, on average, failed to meet the minimum passing level. (Petitioner's Exhibit 1.) RESPONDENT'S FAILURE TO SUBMIT TO A PSYCHIATRIC EXAMINATION The parties stipulated that the contract signed by Respondent in 1959 is the continuing contract in effect between the parties. Article 24, Section I, paragraph 4 of said contract provides as follows: The employee further agrees that the party of the first part shall have the right at any time during the term of this contract, to require that the party of the second part shall submit to either a physical or psychiatric examination by at least two qualified physicians or psychiatrists appointed by the party of the first part. The party of the second part agrees to submit to this examination, if requested, and to allow the report of the said physicians or psychiatrists to be submitted to the party of the first part. . .Failure of the employee to fulfill this contract, or to carry out the lawful provisions thereof, unless prevented from so doing by reason of personal illness or other just cause, or unless released from the contract by the county board, shall constitute sufficient grounds for the termination of the contract on the part of the county board. Additionally, the contract provides under Subsection (a) that: At all times the choice from among state licensed physicians, psychologists, psychiatrists, shall be made by the employee from a list provided by the employer. No employee shall be compelled to submit to any test or examination not required of all employees of that classification without a written statement of the need for such examination. Petitioner, in its Notice of Charges, stated in writing that it was the Board's position that Respondent was emotionally unstable. Based thereon, it is found that such statement provides a need for the examination. Respondent failed and refused to submit for examination by a psychiatrist from the list provided by the School Board. Without question, the Respondent appears to be a very dedicated teacher and spends a great amount of time preparing for instruction. This preparation includes time spent preparing lesson plans at home. Additionally, the parents of numerous students which Respondent had taught expressed their belief that their children had progressed while they were students in Respondent's classroom. Respondent exemplified a great deal of care and concern for the well being and educational needs for students. Petitioner, by its administrative officials, does not contest Respondent's concern for the educational needs of her students. However, what is at issue, is Respondent's failure to impart, through a structured educational setting, a planned method for teaching students. In this regard, the evidence revealed that Respondent's efforts fall short of the mark required of teachers employed by Petitioner. For this reason, I am forced to recommend that the Petitioner's suspension of Respondent be upheld. Further, in view of Respondent's failure to submit to a psychiatric examination as requested by Petitioner, the Respondent breached her obligation to submit to psychiatric examination on request by the Petitioner. In view thereof, additional basis exists to support Petitioner's suspension of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the suspension of Respondent, Bernice Schlecker, be SUSTAINED. Additionally, it is recommended that the Respondent be offered an option to resign from the School System within five (5) days from the entry of the Board's final order. Absent such resignation by Respondent, it is recommended that the Respondent be dismissed from her employment with the Dade County School Board. RECOMMENDED this 25th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1979.
The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
