The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2012),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 730576, covering the areas of emotionally handicapped and mathematics, which is valid through June 30, 2016. During all times relevant hereto, Respondent was employed as a mathematics teacher at Winter Springs High School (WSHS) in the Seminole County School District (SCSD). Dr. Michael Blasewitz is currently the executive director of secondary education for Seminole County Public Schools and was principal at WSHS from 2004 through the 2011- 2012 school year. In 2006, Dr. Blasewitz hired Respondent as a teacher at WSHS. On or about January 25, 2010, Dr. Blasewitz issued a letter of reprimand to Respondent for making inappropriate, sexually suggestive comments to female students. The reprimand contains the following directives: You are to conduct yourself in a professional manner at all times; You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students; You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and You are to maintain an appropriate student/teacher relationship at all times when interacting with students. On or about March 5, 2012, Dr. Blasewitz issued a second letter of reprimand to Respondent for making an inappropriate, sexually suggestive comment to a student, and displaying a rubber penis on his desk, which Respondent had confiscated from a student. The reprimand contained the following directives: You are to conduct yourself in a professional manner at all times; You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students; You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and You are to maintain an appropriate student/teacher relationship at all times when interacting with students. Respondent was informed in both letters of reprimand that further misconduct could result in more discipline, including termination of his employment. Dr. Donna Reynolds has been the principal at WSHS since 2012. On or about October 11, 2012, a 16-year-old female student, A.T., reported that while in Respondent’s classroom, she was seated on Respondent's desk chair. A.T. alleged that Respondent asked her to remove herself from his chair and when she refused to do so, Respondent sat in the chair (with the student still seated) by physically wedging himself between the back of the chair and A.T.'s back. Respondent, by placing himself in such a position, allegedly caused the front of his torso to press against A.T.'s back. A.T. allegedly did not like being touched by Respondent and, as an expression of her displeasure, poked Respondent in his eye with a marker. An investigation was launched as to Respondent’s alleged misconduct involving A.T., and it was pursuant to this investigation that other alleged misconduct by Respondent was discovered.2/ On or about October 26, 2012, the SCSD reassigned Respondent to the maintenance department pending the outcome of the investigation stemming from the allegations made by A.T. On or about March 15, 2013, the SCSD notified Respondent that at the next regularly scheduled board meeting, the SCSD would be recommending that Respondent's employment be suspended without pay and subsequently terminated. On or about April 12, 2013, Respondent entered into a settlement agreement with the SCSD, wherein Respondent resigned from employment, effective immediately, and agreed not to seek reemployment with the SCSD in any capacity, “at this time or at any future time.” Respondent, in both the settlement agreement and his letter of resignation, did not admit to or otherwise acknowledge any wrongdoing as it relates to any matter pertaining to his employment with SCSD. Background Former WSHS student K.C., at the time of the disputed fact hearing, was 20 years old. K.C. entered the ninth grade at WSHS during the 2009-10 school year and graduated from WSHS at the end of the 2012-13 school year. During the 2011-12 school year, when K.C. was a junior at WSHS, one of her assigned classes was to work as Respondent’s aide. According to K.C, this resulted in her spending between one to two hours each school day in Respondent’s classroom. M.A. is currently a senior at WSHS. During the 2012-13 school year, M.A. was enrolled as a student in one of the algebra classes taught by Respondent. M.A.’s first language is Spanish and she only started speaking English a few years ago. M.H. graduated from WSHS in 2015. M.H. was never enrolled as a student in any of the classes taught by Respondent but met Respondent during the 2011-12 school year when a student that M.H. befriended on the bus informed M.H. that she was involved sexually with Respondent. M.H., even though she did not know Respondent at the time, approached Respondent and inquired about the nature of his relationship with the student in question. Upon questioning by M.H., Respondent denied that he was involved in a sexual relationship with the student in question. As a consequence of this encounter, Respondent and M.H. developed a friendship. Girls Sitting on Respondent’s Lap Throughout the course of the 2011-12 school year, K.C., while performing her duties in Respondent’s classroom as a teacher’s aide, often observed female students conversing with Respondent while sitting on Respondent’s lap. K.C.’s specific recollection is that throughout the school year there were numerous times when she observed many different girls sitting on Respondent’s lap. According to K.C, the girls would often sit on Respondent’s lap in positions where they would straddle Respondent while facing him, sit such that their butts would be on Respondent’s lap with their backs facing Respondent, or sit across Respondent’s knees. M.A. also witnessed Respondent engage in conduct similar to that described by K.C. During the 2012-13 school year, M.A. was enrolled as a student in one of the algebra classes taught by Respondent. The algebra class met during the first and second periods of the school day. M.A. credibly testified as follows: Q: Okay. Did you ever see any girls sit on Mr. Mulock’s lap? A: Yes. During class. Because I had him for a long time, first and second period. So girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap. Q: I mean how? Sideways? Backwards? A: Facing out. Q: Facing out? A: Uh-huh. Q: Backed up to him with their butt in his lap? A: Yeah. Q: What were they doing while they’re sitting [o]n Mr. Mulock’s lap? A: Talking, laughing, joking around. Tr., pp. 191, 192 M.H. credibly testified to an incident where, against her will, she ended up sitting on Respondent’s lap. According to M.H., one day while in Respondent’s classroom, she was walking past Respondent while he was sitting on a chair, when Respondent, for no reason, grabbed her forearm and tugged her towards him thereby causing her to fall in a seated position on Respondent’s lap. Inappropriate Text Messages K.C. credibly testified that on one occasion she received a sexually suggestive text message from Respondent. K.C. explained that once while working as Respondent’s student aide, she was in Respondent’s classroom when the school’s front office called looking for Respondent. At the time of the call, Respondent was absent from the classroom. K.C., in an attempt to provide cover for Respondent, informed the front office that Respondent was in the hallway talking to another teacher, even though in reality she did not of Respondent’s whereabouts. After speaking with the front office, K.C. texted Respondent and asked “if he was coming to class.” Respondent replied to K.C. saying, “I’m not coming. I have not seen you yet.” K.C. was bothered by Respondent’s sexually suggestive reply. M.H. testified that she also received a sexually inappropriate text message from Respondent. M.H. credibly testified that a few months after befriending Respondent, he randomly sent her a text message generally asking, “hey, what’s up?” M.H. responded by saying, “hey, not much. Just hanging around.” Respondent then texted that “he was sexually frustrated and in need of release.” M.H. was uncertain of Respondent’s motives, and because she felt uncomfortable with Respondent’s text, she elected not to respond to his sexually charged statement. Sexually Suggestive/Inappropriate Comments and Gestures K.C. testified that one of her fellow students died while K.C. was a student at WSHS. Following a memorial service for the departed student, K.C., Respondent, and a number of other female students went to a business establishment near the school for refreshments. While at the establishment, Respondent asked the girls if they were still virgins. According to K.C. “everyone [was] just like shocked and like hurried up and changed the topic.” In a separate incident, Respondent also asked K.C. if she and her then boyfriend were engaged in sexual activity. K.C. advised that Respondent’s inquiry about whether she and her former boyfriend were having sex “was kind of awkward [and] I just felt like he shouldn’t be asking that[,] it was like personal.” Eventually K.C. ceased all contact with Respondent because being in his presence made her feel very uncomfortable. Respondent also made inappropriate comments to M.A. On one occasion, Respondent told M.A., “you are very beautiful. Just wait a little bit longer till you’re 18, because I’m going to be at your door knocking.” M.A. said that she felt embarrassed by Respondent’s statement. M.A. also testified that while in class with Respondent, she observed Respondent jokingly arguing with a female student (C.C.) about a marker. M.A. credibly testified that during this incident, she saw Respondent grab C.C. around her waist and touch C.C. on her butt with his hand. Former WSHS student M.H. credibly testified that Respondent discussed his sex life with her, including sexual fantasies that he had about a female co-worker and his sex life with his wife. Respondent told M.H. that “he was a little frustrated with his wife because she want[ed] to conceive more children at the time, and he liked being more spontaneous about it, and she was scheduling sex on a calendar.” M.H. also credibly testified that Respondent made inappropriate comments about her breasts, stating that Respondent once said that she “looked perky today.” There was also an instance where Respondent pinched M.H. on the butt. M.H. also credibly testified that while Respondent was planning for a scalloping trip with her and several other students, she heard Respondent exclaim that “he couldn’t wait to see [K] (another student at WSHS) in her bikini.” On another occasion M.H. was present when Respondent, while standing next to another female student, squeezed the female student’s lips and said, “doesn’t she have perfect lips for a blow job.” On yet another occasion, M.H. heard Respondent proclaim that a student named C.W. “had big tits” and that another student, S.G., “had a great body.” Finally, M.H. heard Respondent offer the following proposition to student S.G.: Q: And tell us what exactly did you hear Mr. Mulock say. A: He had made a proposition to her that if she could get him off orally, blow job, then he would treat her to a weekend of whatever she wanted to do. Anything. And if she failed to get him off orally, then it was vice-versa, that she got – or he got to do whatever he wanted with her for an entire weekend. Tr., p. 183. M.A. also witnessed Respondent making sexually suggestive gestures and inappropriate comments. M.A. credibly testified as follows: Q: Okay. Did you ever observe Mr. – hear Mr. Mulock make any inappropriate comments and make inappropriate gestures? A: Yes. Q: Tell us about that. A: He would – when he was teaching, he would always talk and then always try and make it out of sex. He would make gestures with his tongue. He would poke his cheek (indicating) with his tongue and just make gestures like that (indicating). And trying to be funny or being nasty. Q: This is kind of embarrassing for you? A: A little bit, yeah. He would do like stuff like that (indicating), like open his mouth and – Q: And move his hand back and forth? A: Yeah. Q: And poke his tongue inside his cheek? A: Yeah (indicating). And he would then swallow stuff and like that. Q: Okay. When he would do those things, in your mind what is he doing? A: I didn’t understand why he would do th[at] stuff in front of the whole class. And the funny thing is that it was only – he was always around girls. So the girls would find that a little bit funny at that time, some girls. And then some guys would just shake their heads. It was very clear what he was trying to do, you know. Q: When you say it was very clear –- A: Yeah. Q: -- what’s clear in your mind? What is he doing? A: Because he’s being nasty, perverted. It’s not right. Tr., pp. 189 through 191. Respondent Assisted M.H. with Skipping Class M.H., by her own admission, was not a star student during her freshman year and she credibly testified that Respondent materially contributed to her less than stellar performance as a student. M.H. testified as follows: Q: Alright. Now at that point did you all, you and Mr. Mulock, then develop a friendship? A: Yes. Q: Did you spend a lot of time with him in class during the class day? A: Yes. Q: Tell us about when you would go to his classes – go to his room. How many times a week would you say you went to his room? A: Probably on a daily basis. Q: Daily basis. How long did you stay there? A. Sometimes the whole day, sometimes just one or two classes, depending on which class I was trying to skip that day. Q: Okay. Now if you’re spending time in his class, and he’s not one of your teachers, weren’t you supposed to be somewhere else? A: Of course. Q: Okay. And did he know that you were supposed to be somewhere else in class? A: Yes. Q: Okay. Did he ever make excuses for you with teachers, to get you back in the class? A: To get me back in – into his classroom, or Q: Into another class. A: Yes. Q: Okay. How would he do that? A: Either by email, or a phone call, or writing a pass. Q: To the teacher whose class you were supposed to be in? A: Yes. Q: Okay. So you just went there often and just kind of hung out? A: Yes. Q: And he was okay with that? A: Yes Tr., pp. 156 through 158. Afterschool Activities Petitioner alleges that Respondent, without the approval of students’ parents and the administration of WSHS, took students fishing on his boat and had students doing yardwork at his personal residence. Neither the boat trip nor the yardwork activity occurred during the school day. Respondent admits that administrative personnel for WSHS were unaware of these afterschool activities. However, as to the fishing trip and yardwork performed at Respondent’s home, the undisputed evidence establishes that the father of one of the students escorted his daughter on the fishing trip and the mother of one of the students that performed yardwork at Respondent’s home transported her daughter to Respondent’s home on the day in question. The evidence offered by Petitioner as to these allegations is insufficient to establish that Respondent engaged in clandestine activities that breeched established standards related to parental consent. Students Hanging Out in Respondent’s Classroom Paragraph 6(e) of the Administrative Complaint alleges that Respondent, after being warned by his immediate supervisor, continued to allow students to hang out and socialize in his classroom during his lunch breaks and planning periods. Dennis McComb arrived at WSHS in October 2011. Mr. McComb was Respondent’s immediate supervisor. Within a month of his arrival, Mr. McComb observed that students, contrary to policy, were in Respondent’s classroom during Respondent’s planning period. Mr. McComb informed Respondent that he needed to cease allowing students in his classroom during the planning period. As previously indicated, K.C. worked as Respondent’s student aide during the 2011-12 academic term. K.C. testified that she witnessed multiple girls hanging out in Respondent’s classroom “when we were switching classes . . . [o]r sometimes they would already be in there when I went to his class for the class I was supposed to be there for.” M.A. testified that “girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap.” M.H. testified that Respondent “would have classes going on, and then other students throughout the day would come in and visit him, or other students would skip in his class as well.” The testimony of these students is not specific as to when they made their observations in relation to Mr. McComb’s directive to Respondent regarding students being in Respondent’s classroom at improper times. Respondent’s Effectiveness as Educator Undermined Dr. Blasewitz, Dr. Reynolds, and Mr. McComb testified that based on Respondent’s conduct while employed at WSHS, they would not want Respondent employed as a teacher and believe the alleged misconduct engaged in by Respondent, if true, would undermine his effectiveness as an educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through six of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 730576 for a period of five years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 30th day of October, 2015.
Findings Of Fact Respondent was first employed by Petitioner as a substitute teacher beginning June 8, 1990. Since August 1990, and at all times pertinent to this proceeding, Respondent was employed by Petitioner as a full-time teacher pursuant to a professional service contract and assigned to McMillan Elementary School. Petitioner is charged with the duty to operate, control, and supervise all free public schools within the School District of Dade County, Florida. McMillan Elementary School is a public school in Dade County under the control of the Petitioner. During the 1992-93 school year, Respondent routinely began one of his sixth grade math classes by telling jokes to his students and, at times, sang to his class songs that contained obscene lyrics. Many of these jokes contained obscenities and ethnic slurs. In addition to telling these jokes during class, Petitioner permitted his students to tell these same type jokes. This joke telling time was referred to as "joke-off" and took place in lieu of classroom instruction. During the 1992-93 school year, Respondent permitted male students to draw pictures of naked females and told one student he should enlarge the figure's breasts. During the 1992-93 school year, Respondent made inappropriate comments to a group of sixth grade girls, teasing them about having small breasts and buttocks. Respondent referred to these girls as the "itty bitty titty committee". During the 1992-93 school year, Respondent discussed with his students two sexual encounters he had experienced. During the 1992-93 school year, Respondent gambled with certain students while playing basketball and sold donuts and pencils to students. During the 1992-93 school year, Respondent engaged in prohibited corporal punishment by flicking students on their ears, by twisting a student's nose, and by throwing a student against the wall outside of his classroom. Respondent lifted a student off the ground by his ankles, thereby hanging the student upside down. These acts constituted inappropriate corporal punishment of students. During the 1992-93 school year, Respondent gave certain male students "wedgies" by lifting the students up by their underwear. While this activity may have been done in a playful spirit, this conduct was inappropriate and exposed the students involved to unnecessary embarrassment. During the 1992-93 school year, Respondent told a female student in the presence of other students that she was "full of feces and excrement." Respondent also told this student, who is of African-Caribbean heritage, that her race was unclear because she had Caucasian hair and an African nose. Respondent told this student that she had "jungle fever" because she dated a Caucasian boy. These statements to this female student were inappropriate and exposed the student to unnecessary embarrassment. During the 1992-93 school year, Respondent was habitually tardy or absent. Respondent was also frequently absent from his classroom while he conducted business unassociated with his duties as a classroom teacher. The principal and assistant principal had repeated conferences with Respondent about his attendance. During the 1992-93 school year, Respondent was habitually late to team meetings, failed to bring his grade book to conferences, and appeared to be sleeping during parent conferences. Respondent entered final grades for his students in an arbitrary fashion without referencing his grade book. The assistant principal reprimanded Respondent for eating in class, being absent from the classroom, and not applying approved methods for student grading. Following the suspension of his employment, Respondent was directed not to be on school grounds. Respondent violated this directive. He was arrested for trespassing and reprimanded by the assistant principal. The trespassing charges were subsequently dropped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein and terminates Respondent's professional service contract. DONE AND ENTERED this 17th day of August, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5862 The following rulings are made on the proposed findings of fact submitted by the Petitioner: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact contained in paragraphs 3-9 consist of the recitation of testimony that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 4, 5, 6, and 10 are rejected as being argument that is unnecessary as findings of fact and, in part, contrary to the conclusions reached. Respondent failed to establish that the Petitioner violated any orders pertaining to discovery as asserted in paragraph 6. The proposed findings of fact in paragraphs 7, 8, 9, 11, 15, 16, and 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 12 and 13 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 14 are subordinate to the findings made. COPIES FURNISHED: Reginald J. Clyne, Esquire Williams & Clyne, P.A. 1102 Douglas Centre, Suite 1102 2600 Douglas Road Coral Gables, Florida 33134 Mr. Kenneth C. Patterson Post Office Box 161786 Miami, Florida 33116 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY 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 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s educator?s certificate, and if so, the nature of the sanctions.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department?s rules establishing standards of teacher conduct. Respondent holds an educator?s certificate, No. 1085138, issued by the Florida Department of Education. At all times material to this proceeding, Respondent was a music teacher at Ed White High School in Duval County, Florida. Respondent graduated from Florida A & M University in the Spring of 2008 with a bachelor?s degree in music education. Respondent was first employed by the Duval County School Board in February, 2008, immediately before his graduation from Florida A & M, as a substitute teacher at Ed White High School. He taught as a full-time music teacher during the 2008-2009 school year, until his resignation on April 6, 2009. Respondent currently holds a teacher certification from the state of Georgia, and teaches music at Terrell High School in Atlanta, Georgia, a position that he has held for two years. Mr. Jackson had a good reputation as a teacher. There was no allegation of any prior disciplinary history involving Respondent. One of the resources provided to Respondent as a teacher at Ed White High School was a school-issued laptop computer. That computer was Respondent?s only school-issued computer, as the school did not provide him with a desktop computer. There was no restriction against teachers taking school-issued laptops home for work-related purposes. Respondent occasionally took his school-issued laptop home with him. He also stored music files on his school-issued laptop after his personal laptop was stolen from the school. Respondent had an account with the school, which included access to the internet. In order to have that account, Respondent was provided with a copy of the Duval County Public Schools Staff Network and Internet Acceptable Use and Security Policy and Guidelines (AUP). Among the guidelines were the following: All Network Usage is Subject to Monitoring The Internet and other networks are public places. There is no reasonable expectation of privacy. The district reserves the right to monitor all traffic on the network and review all files stored on or transmitted through its computer system. * * * Appropriateness of Materials Access to the internet provides opportunities for staff and students to explore thousands of resources outside of the walls of their school or office. The district acknowledges that fact that inappropriate materials exist and will do everything it can do to actively avoid them, including the use of filtering software. The district has implemented technology protection measures that filter internet access to block visual displays that are obscene, pornographic, or harmful to minors, but this technology is not 100% effective. No software can filter out all of the materials that are unacceptable for academic purposes and it should be clearly understood by all staff and all students and their parents/guardians that intentional access to such material, in any form, is strictly forbidden. The network is designed to achieve and support the district?s business and instructional goals and any information that does not support the goals is to be avoided. The district wants staff and students to use this valuable tool, but at the same time cannot condone the use of inappropriate information or unauthorized access. If a staff or student unintentionally accesses such information while doing legitimate research, he/she should contact the teacher or the person responsible for technology at his/her site for appropriate action. It is the responsibility of all users, staff, and students that at all times while in the Duval County Public Schools, the computers, the network, and the internet are being used primarily for educational or district business purposes. * * * Network Security Passwords The person in whose name a network account is issued is responsible at all times for its proper use Passwords must never be shared. To share a user ID or password exposes the authorized user to responsibility for actions the other party takes with the password and ID * * * Appropriate Behavior Staff members are responsible for appropriate behavior on the district?s computers, business systems, network, and the internet and should adhere to all relevant federal, state, and local laws; district policies, guidelines, standards, procedures and controls; and the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida. Users who disregard the federal, state, and local laws and codes, district policies, guidelines, standards, procedures and controls may have their privileges suspended, revoked, and disciplinary action taken against them, including termination. Users granted access to the network through the district?s computer systems assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district?s guidelines. Employees should only use the information from business systems or the network in the performance of their duties/responsibilities with the school system unless that is a direct responsibility of the employee. The district does not sanction any use of its computers or the internet that is not authorized by or conducted strictly in compliance with this policy and the district?s guidelines, standards, procedures, and controls. Users who disregard this policy and the district?s guidelines, standards, procedures and controls may have his/her privileges suspended or revoked and disciplinary action taken against them. Users granted access to the network through the district?s computers assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district?s guidelines, standards, procedures and controls. The district retains the right to remove from its information systems any material it views as offensive or potentially illegal. The district declares unethical and unacceptable behavior as just cause for disciplinary action, the revocation of network access privileges, termination and/or the initiation of legal action for any activity through which an individual: uses the district?s computers and/or network for illegal, inappropriate, or obscene purposes, or in support of such activities * * * b. Obscene activities shall be defined as a violation of generally accepted social standards for use of a publically owned and operated communication vehicle Respondent acknowledged receipt of the AUP by electronic signature. Respondent?s laptop computer was password-protected, meaning that no one other than Respondent could access the school network or any computer files without having his password. As a teacher, Respondent had access to certain websites that were blocked to students, most notably YouTube. Respondent provided his password to three or four trusted students to complete online classwork, or to view videos of other bands on YouTube in preparation for their end-of-year, spring concert. Although sharing password information with students is prohibited by the AUP, and student access to the internet is conditioned upon the Duval County Public School employee obtaining signed parental consent, those potential violations were not pled in this case. In the spring semester of 2009, James Culbert, as part of his weekly review of the school district?s internet content filter system, determined that Respondent was accessing, or attempting to access, inappropriate internet sites through his school account, or was using search terms that the school district had determined to be inappropriate for use on the school district system. Mr. Culbert reviewed the internet access logs, and prepared a full internet-use report for Respondent?s account for the period from March 2, 2009 to April 6, 2009. The report consisted of 530 pages of internet history, and included every internet search performed using Respondent?s account during that period. Those searches included educational and other non- restricted sites, and the inappropriate sites that form the basis of the Administrative Complaint. The internet-use records reflected access or attempted access to inappropriate, pornographic materials through Respondent?s account on five occasions from March 12, 2009 to March 31, 2009. Contemporaneously with Mr. Culbert?s system analysis, Mr. McCallum accessed Respondent?s computer, apparently by remote means, and determined that it contained downloaded video files that were pornographic in nature. On April 6, 2009, Mr. Culbert and Mr. McCallum met with Ed White High School Principal Jim Clark to advise him of the results of the investigation. Principal Clark and Mr. Culbert then went to the band room at approximately 11:20 a.m., during Respondent?s planning period, and asked Respondent to accompany them to the principal?s office. The classroom visit was intentionally discreet so as not to call attention to the situation. Respondent was joined in the principal?s office by Principal Clark, Mr. Culbert, and Mr. McCallum. The school officials proceeded to provide Respondent with the substance of the allegations against him. During the investigative interview Respondent acted in a cooperative and gentlemanly manner. When confronted with the conduct that gave rise to the allegations in this proceeding, Respondent voluntarily resigned his position with the Duval County School Board. Respondent knew that the use of his school-issued laptop computer to access pornography was prohibited by the AUP, having signed an acknowledgement that he had received, read, and understood the policy. In addition, each time a teacher logs onto a school-issued computer, a banner page appears warning the teacher against inappropriate use, instructing that all use may be “monitored, intercepted, recorded, read, copied, or captured,” and advising that school personnel have no expectation of privacy as to any use of the system. Nothing in the record suggests that Respondent tried to disable the District?s computer and internet protection, downloaded any program to circumvent the District?s filtering software, or took any steps to disguise his actions. Internet Searches The only direct evidence of Respondent accessing or attempting to access inappropriate websites was for the following dates and times: March 12, 2009 at 7:33 a.m. - “google.com” and “youtube.com.” March 17, 2009 at 12:06 p.m. - “live.com.” March 18, 2009 from 11:37 to 11:46 a.m. and 11:52 to 11:53 a.m. - “live.com,” “msn.com,” and “google.com.” March 23, 2009 at 10:46 to 10:49 a.m. - “google.com” and “youtube.com.” March 31, 2009 from 6:37 to 6:43 p.m. - “excusivepussy.com,” “blackcrush.com,” “live.com,” and “RUDE.com.” There is nothing inherently improper about accessing Google, YouTube, or msn.com. Rather, it is the search terms used that form the basis for the complaint. Those search terms, though not inherently graphic, were sufficient to support a finding of intent to access inappropriate content. As part of his forensic investigation, Mr. Culbert retrieved JPEG files from the temporary internet files on Respondent?s computer. The files consisted of photographic images of pornographic activity, and were created between 6:37 to 6:43 p.m. on March 31, 2009. Thus, I find the evidence to be clear and convincing that Respondent accessed pornographic materials on his school-issued laptop computer during that period. March 30 through April 3, 2009 was spring break. The “Material Allegations” alleged in the Administrative Complaint indicate that Respondent?s access of the inappropriate materials during school hours was material, and constitute the allegations of misconduct that Respondent must answer to. Since the access on March 31, 2009, occurred over spring break and beyond regular school hours, the access on that date does not form the basis for a violation. The fact that inappropriate images were in temporary internet files is not evidence that Respondent downloaded any images, or had the intent to store those images on his computer. It is common knowledge that computers keep track of information that passes through them without any action on the part of the user. The evidence shows that to be the case here. Thus, although Respondent accessed the images on March 31, 2009, outside of school hours, there is no evidence that he intended to maintain such images in a manner that could be reasonably accessed by students. During the six-minute period on March 31, 2009 in which inappropriate websites were accessed or had attempted access, the internet use report shows hits on “scutheti.com,” which is a malicious code/virus. The malicious code/virus first manifested itself at 6:37 p.m., contemporaneously with the first hit on the “RUDE.com” website, which was likely the infecting vehicle. Based on the uniform sequence of access to two of the more graphically-named websites following connection to “scutheti.com,” it is clear that the sites were interacting with each other, and that “scutheti.com” was trying to send tracking information to those sites. The only plausible way that those sites could have been accessed with the depicted frequency and regularity during that six-minute period was through the actions of a malicious application, rather than by action of Respondent. Thus, I find that Respondent did not access or attempt to access those graphically-named websites listed on the first three pages of the internet-use report. The evidence of record contains no temporary internet files or downloaded images of pornographic materials for the March 12, March 17, March 18, or March 23, 2009, instances of access or attempted access to inappropriate materials. Each of those dates was a school day as shown on the 2008-2009 District Calendar. Given the lack of stored images in the temporary internet files for those dates, it is more reasonable than not that the school district?s internet filter worked as designed, and prevented access to those sites. That finding is bolstered by the fact that it was the blocks of pornographic type websites that brought this matter to the attention of the school district. Mr. Culbert testified that the website screen shots that he reviewed to determine the nature of the sites identified from the internet filter report were not retrieved from Respondent?s computer, but were rather obtained during his investigative foray to those sites. Those screen shots do not constitute clear and convincing evidence that Respondent successfully accessed any inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009. There is no direct evidence that the access or attempted access to inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009 occurred while students were in the classroom. Nonetheless, Respondent suggested that the access to inappropriate sites could have been the result of students surfing the internet on his laptop computer while unattended. It is plausible that students to whom Respondent provided his ID and password could have accessed inappropriate content while using his computer. However, there is neither an allegation nor proof of that having occurred. Regardless, the AUP made it clear that Respondent bore responsibility for unacceptable use in the event he chose to share information, a policy that is reasonable and appropriate. Video Files During his inspection of Respondent?s school-issued laptop computer, Mr. Culbert discovered five video files stored on the computer?s hard drive that depicted graphic sexual conduct between adults. The files range from 18 to 34 minutes in length. The evidence indicates that the files were downloaded on March 31, 2009 from 9:45 to 9:46 p.m., and on April 1, 2009 from 3:20 to 3:26 p.m. At some time prior to the incidents that are the subject of this proceeding, Respondent and other teachers at Ed White High School, were asked to clear their computers of personal files to allow for system work. Respondent had thousands of mp3 music files on his school-issued computer. Use of the computer for that purpose was not identified as being contrary to the school?s acceptable-use policy. In order to clear his computer, Respondent loaded his mp3 files onto a series of personal “jump drives.” After being cleared to do so, Respondent reloaded his files from the jump drives back onto his school-issued laptop computer hard drive. Respondent testified that he did not download any video files to the computer from the internet, and had no recollection of having intentionally loaded such files from any other source. He could only conclude that the video files were stored on one or more of the jump drives, and were downloaded with the mp3 files without the specific intent to do so. His testimony on that issue is both plausible and credible. Thus, the greater weight of the evidence demonstrates that the download of the video files was inadvertent and unintentional. It does appear that Respondent did, while still on spring break, access two of the video files on April 2, 2009, at 9:33 a.m. Access on that day was not during school hours. However, such access reveals that Respondent became cognizant of their presence on the laptop computer, and should have led him to delete them from the school-issued computer. The access log further indicates one of the videos was accessed at 9:43 a.m. on April 6, 2009, a school day. However, prior to Mr. McCallum and Mr. Culbert?s 11:00 a.m. meeting with the principal on April 6, 2009, and prior to their taking physical control of the computer, Respondent?s internet attempts were checked and “[i]n addition, a further check revealed that Jackson had downloaded pornographic videos onto his district assigned laptop.” Thus, it appears that remote access to Respondent?s computer was obtained by the investigators prior to their 11:00 a.m. meeting. After that “further check,” Mr. McCallum drove to Mr. Culbert?s office, picked him up, and they drove together to Ed White High School. Given the sequence and timing of events, it is more likely than not that the April 6, 2009, video access was made as part of the investigation. In any event, the evidence is not clear and convincing that Respondent accessed the video file at 9:43 a.m. on April 6, 2009. Respondent denied ever having accessed or played the videos during school hours as alleged in the Administrative Complaint. The greater weight of the evidence supports his denial. DVD disc When the school officials took possession of Respondent?s school-issued laptop on the morning of April 6, 2009, they discovered a DVD in the computer?s DVD drive. The DVD consisted of videos of adults engaged in a variety of sexual acts. The DVD was pornographic in nature. The record is devoid of evidence as to when the DVD was inserted into the computer drive. Although Respondent disclaimed knowledge of how the DVD made it into the computer drive, the evidence is clear and convincing that it was placed into the computer drive while the computer was in Respondent?s control. Respondent is responsible for his school-issued laptop computer, and its contents are fairly attributable to him. There is no evidence that the DVD was ever accessed or played during school hours, or that it was ever viewed by or shared with any student, teacher, or staff member of Ed White High School. The materials that were found on Respondent?s computer, either as internet images, video files, or the DVD, all depicted sexual activity between consenting adults. None of them depicted sexual activity involving minors. There is no evidence that the materials were “obscene,” though they are clearly pornographic. In that regard, Ms. Young was twice asked her opinion as to whether the materials were “obscene or pornographic,” and her response on both occasions was that they were pornographic. There is no evidence that the materials were illegal or that they involved criminal activity. While the materials are without question offensive to some, accessing and watching images of adults engaged in sexual activity, in privacy, does not involve “the idea of inherent baseness or depravity in the private social relations or duties owed to man or by man to society.” Neither the conduct alleged, nor the investigation or interview of Respondent was known to anyone outside of the principal and the two school board employees involved in the investigation. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent?s access or attempted access of inappropriate material from his school- issued laptop. His conduct was not, in any sense of the term, “notorious.” The fact that Respondent?s school-issued laptop computer was used to access, store, or hold pornographic images in various forms and on various media did not have any adverse affect on Respondent?s effectiveness as a teacher at Ed White High School.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered: dismissing Counts 1 and 2 of the Administrative Complaint; finding the Respondent guilty of the violations alleged in Counts 4 and 5 of the Administrative Complaint and, as a result, also guilty of the non-separate violation alleged in Count 3 of the Administrative Complaint; imposing a suspension of the Respondent's educator certificate for a period of 90 days; imposing a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case; requiring that Respondent take and pass a three-hour, college-level course in ethics during the probationary period; and imposing a fine of $250 to be paid by the end of the probationary period. DONE AND ENTERED this 18th day of August, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of August, 2011.
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
The Issue The issues to be determined are whether Respondent, Mr. Oges Fadael, violated sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Administrative Complaint, Mr. Oges Fadael held an educator certificate and was employed as a guidance counselor at Congress in the Palm Beach County School District. On November 17, 2011, K.S., a 13-year-old student, went to his new school, Congress, at mid-day. After attending afternoon classes, he attempted to board a school bus for a ride back to his home at the end of the day. The bus driver refused to let K.S. get on the bus, saying that he needed to have a bus pass. K.S. testified that he then told Mr. Fadael, who was in the bus loop, that the bus driver would not let him get on the bus and that he needed assistance to get home. Mr. Fadael responded, "Hell, walk." K.S. testified that he started to walk, but couldn't find his way home, and that three or four hours later his uncle picked him up and took him home. The following morning, on November 18, 2011, K.S. returned to Congress. He walked down a hall leading to the Student Services Office, where students were not supposed to be at that time in the morning. Mr. Fadael observed that K.S. was out of his assigned area and called after him, asking him where he was going. Mr. Fadael repeated his question, and asked K.S. to stop. K.S. did not answer Mr. Fadael, and continued to walk down the enclosed hallway, away from Mr. Fadael, with Mr. Fadael following him at a distance. Mr. Anthony Cruz, a digital graphic design teacher at the school, was in front of K.S., coming from the opposite direction down the hall toward K.S. and Mr. Fadael. Mr. Fadael called out to Mr. Cruz to "Please, stop this young man." Mr. Cruz addressed K.S., saying, "Where are you going? Please stop." K.S. did not answer Mr. Cruz or do as he was directed, and instead attempted to pass by Mr. Cruz, first to the right, then to the left, and then to the right again, with Mr. Cruz adjusting his body position and arms with each move to remain in front of K.S. and block his way. K.S. continued to ignore Mr. Cruz and turned around to go back down the hall in the direction from which he had just come. He met with Mr. Fadael, who again asked him where he was going, and directed him to stop. Again, K.S. did not answer or do as he was told, but instead attempted to pass around Mr. Fadael. Mr. Fadael pointed toward the Student Services Office and then stepped toward K.S., "herding" K.S. out of the hall and into a small alcove area outside the door leading into the Student Services Office. At this point, Mr. Cruz testified that he saw K.S. try to "push off" Mr. Fadael. He explained that this was not done in an aggressive fashion, but just to push him out of the way, to get away from him and go on his way. The binder that Mr. Fadael was carrying fell to the floor, but there was no clear and convincing evidence as to exactly how this happened. Mr. Fadael's written statement after the incident claimed that K.S. hit it and knocked it to the ground, as Mr. Fadael reiterated at hearing. The testimony of Mr. Cruz was equivocal, claiming at one point that Mr. Fadael put in down, and at another point that Mr. Fadael dropped it. K.S. himself offered no testimony as to whether he knocked the binder down, intentionally or otherwise. There were no other witnesses, and the video camera recording does not show what happened. It is clear, however, that Mr. Fadael grabbed K.S. by his right arm. When Mr. Fadael put his hands on K.S., Mr. Cruz testified that K.S. escalated his physical struggle against Mr. Fadael and "kind of like got really out of control." Mr. Cruz and Mr. Fadael were telling K.S. to "calm down, calm down." K.S. did not calm down. While still holding K.S.'s right arm, Mr. Fadael aggressively pushed him against the window next to the student services area entry door. The window is not flush, but sticks out from the wall. Mr. Cruz testified that K.S. finally calmed down just enough for them to open the door and move inside. The struggle continued in the area inside the door, and K.S. was screaming, "Let me go, let me go." Mr. Cruz testified that Mr. Fadael was holding K.S. with his arm behind his back, with K.S. facing toward the wall. Mr. Fadael pushed K.S. against the wall, pinning him there, as K.S. continued to struggle. Ms. Michelle Weinhouse was a web design teacher at Congress during the 2011-2012 school year. She was in the mailroom in student services and heard yelling outside. When she came out of the mailroom to see what was happening, she saw Mr. Fadael pinning K.S. against the wall. K.S. was crying and cursing, and saying he wanted to get his dad. K.S. was embarrassed and humiliated by his treatment. Ms. Lisa Snyder was a registered nurse assigned to Congress. She testified she had seen Mr. Fadael talking to K.S. earlier, but things like that happened on a daily basis, and she went into her office. She said she came back out of her office when she heard K.S. screaming, "Ouch, let me go, let me go." She testified: There was an altercation with Mr. Fadael, the guidance counselor, and the student. The child was struggling. Mr. Fadael had the child's arms. I think in the process of trying to subdue the child, you know, the kid was--I thought he was slammed against the wall. Nurse Snyder was concerned that K.S. could have sustained a head injury because she saw his head slam against the wall. Later on the day of the incident, K.S. was examined at the JFK Medical Center in Atlantis, Florida. The patient history indicated that there was right shoulder pain. Examination showed he had some contusions and: There is mild widening of the physeal plate laterally concerning for a Salter-Harris type 1 fracture. The humeral head articulates with the glenoid cavity. There is no evidence of displaced fracture or subluxation. The visualized right lung apex is clear. K.S. was instructed not to go to school for two days, and to schedule a follow-up appointment with an orthopedist, because a growth plate fracture was suspected. It is not clear from the record if K.S. was seen by an orthopedist. K.S. testified that he went to therapy for a month. He testified that he had always played football with his friends, but that he wasn't able to do that anymore, and that he wanted to play football in high school, but couldn't do that now. K.S. was injured when Mr. Fadael pushed him against the window or when he pushed him against the wall, or both times. It is clear that K.S. was uncooperative, disrespectful of authority, and disobedient. It is clear that Mr. Fadael used excessive force in response to the disrespectful and disobedient actions of K.S. Ms. Kathy Harris was principal of Congress in the 2011-2012 school year. On November 18, 2011, Ms. Harris was asked to come to her office because a parent needed to see her. The parent was K.S.'s mother, who told Ms. Harris that there was a problem with one of the instructors. After talking with the parent for a while, Ms. Harris asked Mr. Fadael to join them. She testified that when Mr. Fadael arrived, he defended his actions to the mother. Ms. Harris testified that neither the mother nor Mr. Fadael was listening to what the other was saying, and they both became very loud and belligerent. She asked Mr. Fadael to leave and requested that he submit a written statement about what had occurred. He submitted a Student Discipline Referral. He described the events as follows: Student was out of assigned area unsupervised. I asked student to report to his designated area; he refused. I gave him a choice to report to the cafeteria or the gym, and again he refused. Another teacher who was observing the incident asked him to comply, and again the student refused. The teacher attempted to stop him, but the student was still unwilling to cooperate. When I approached him, he became aggressive and extremely provocative. I was carried [sic] my binder and my briefcase, and he knocked my binder to the floor. At this point I had to restrain him for his own safety and had to call school police for assistance. As noted earlier, there was scant evidence showing exactly what happened in the alcove off of the hall. There was no credible evidence as to whether the binder was knocked to the floor, or simply was dropped. Even assuming that false information was contained in the Student Discipline Referral, there was no evidence that it was offered with the intent to defraud. Mr. Fadael submitted the Student Discipline Referral for the purposes of having K.S. disciplined, and to justify his own actions. Ms. Harris testified that at the time she received the Student Discipline Referral, she didn't know if it was accurate or not, but she continued her investigation. Although the referral had requested that K.S. be suspended, this ultimately was not done. In fact, Mr. Fadael was instead given notice of a ten-day suspension. Mr. Fadael did not submit fraudulent information. Mr. Fadael's demeanor at hearing was confrontational and belligerent. His testimony was generally evasive and not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. Oges Fadael, in violation of sections 1012.795(1)(g) and (j), Florida Statutes, and implementing rules. It is further recommended that the Education Practices Commission impose upon Mr. Fadael a fine of $1,500.00 and revoke his educator certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements of the state board current at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of May, 2015.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of March, 2011.
