The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6B-1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Weiss holds Florida Educator Certificate 845839, covering the areas of elementary education and English to speakers of other languages, which was valid through June 30, 2008. Mr. Weiss has an application pending for a professional certificate in the area of educational leadership. At all times material to the Administrative Complaint, Mr. Weiss was employed as a computer teacher at Tice Elementary School (Tice Elementary) in the Lee County School District (School District). He worked primarily with third, fourth, and fifth-grade students. The School District has a policy which prohibits the use of the School District’s computers for viewing inappropriate content. The School District’s Regulation 3.41, entitled “Acceptable Use Policy Governing Internet and Technology Access,” provides: The following procedures shall be followed for governing Internet and technology access. Failure to adhere to these regulations shall result in suspension and/or revocation of access to District information resources pending formal investigation and could result in termination of employment (staff) or suspension/expulsion (student) from the School District. * * * (2) All users are prohibited from: (a) Deliberate access or transmission of obscene, indecent, abusive, or defamatory or otherwise offensive material in any form. The School District maintains an internet filtering system on the School District’s computers. The filtering system is called Chaperone and is used to monitor all accounts using the School District’s network. If a user of the School District’s network visits a known adult-content site, Chaperone blocks access and alerts the School District of the incident. Chaperone also looks for patterns in the access to content which appears to be adult-related, even if the website being viewed is not on the list of inappropriate sites. If Chaperone detects a pattern of behavior involving the viewing of inappropriate sites, a technical support person at the school where the computer is located will be alerted. The alerts sent to the school detail the username, IP address, website, time, and date of the incident. An alert is not typically generated the first or second time an inappropriate site is viewed, but is generated when a pattern of behavior develops. Access to a website is recorded by the central office of the School District. If Chaperone does not detect anything inappropriate about the website reviewed, no alert is sent to the school. All users in a school have a unique user ID to identify them on the network. Mr. Weiss’ user ID at Tice Elementary was “RobertWe.” Mr. Weiss’ classroom was the computer laboratory. The classroom contained computers which were used by the students, and Mr. Weiss also had a computer for his use as the teacher. At times the number of students exceeded the number of computers in working order, and a student would use Mr. Weiss’ computer during class. The laboratory was open to any teacher or class when it was not otherwise occupied by Mr. Weiss’ class. On November 1, 2006, Chaperone generated a report and sent an alert to Amanda Jones, Tice Elementary’s technology support specialist, notifying her that a computer at the school had been used to access inappropriate material. The report identified the username associated with the incident as RobertWe. The computer involved was the computer assigned to Mr. Weiss. Ms. Jones gave the report to the assistant principal at Tice Elementary, Denise Fitzpatrick. Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss in the classroom. Ms. Fitzpatrick deferred in the matter to the principal of Tice Elementary, James Jackson. Mr. Jackson went to Mr. Weiss’ classroom and found Mr. Weiss on a computer viewing a site called Sparksvideos.com. Weiss claimed that he was looking for videos for the students to use. He told Mr. Jackson that inappropriate materials had “popped up” on his screen and that he had deleted the inappropriate materials immediately. Mr. Jackson gave Mr. Weiss an oral reprimand and warned Mr. Weiss to be careful in what he viewed because young children were present in nearby classrooms. Mr. Weiss’ claim that the inappropriate materials were “pop-ups” is without merit. Pop-ups are intrusions on a website from a third-party, and the viewer usually has no control over the intrusion. Pop-ups differ from “solid site” in that the solid site stays on the screen and does not open new windows without user interaction. Ms. Jones was asked to pull up the list of sites that were involved with the November 1, 2006, incident to determine if Mr. Weiss’ explanation of pop-ups was true. The videos that she pulled up were video clips of different women. Ms. Jones took the list of sites involved in the incident home to view on her unfiltered computer. She found that the sites were not pop- ups, but were videos of females engaging in sexual activity. Mr. Weiss’ assertion that he deleted the pop-ups as soon as they came up is false. The Chaperone report showed that during the time period in which inappropriate materials were being accessed, Mr. Weiss remained on the computer sites for approximately 12 minutes. On January 10, 2007, Chaperone sent another report to Ms. Jones at Tice Elementary, alerting her of inappropriate activity. Ms. Jones reported the activity to Dwayne Alton, the technology director for the School District. He instructed Ms. Jones to look through each computer in the school to determine which computer was involved. Ms. Jones and Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss alone. A search of the computers in the classroom turned up a computer which had accessed inappropriate sites. Mr. Weiss told Ms. Fitzpatrick that it was probably a student in one of his third grade classes. He identified the student, and Ms. Fitzpatrick went to question the student. The student identified by Mr. Weiss was a student whose primary language was Spanish, not English. The student barely spoke English and did not appear to have the level of technological knowledge or the communication skills necessary to access the inappropriate materials. The student stated that he had accessed the Disney site, and his claim is supported by the Chaperone report. Mr. Weiss asserts that possibly a student could have confused the website with the name of a cartoon character and accessed the inappropriate material by accident. Such an assertion is without merit. The Chaperone report shows that the account involved accessed several inappropriate sites between 9:28 a.m. and 9:38 a.m. One of the same adult websites was accessed by the same account at 8:50 a.m., belying the appearance of an accident. Mr. Weiss’ claim that a student accessed the inappropriate materials is not credited. Ms. Fitzpatrick took the list of sites involved in the January 10, 2007, incident and viewed the sites at her home. She found them to be inappropriate, including hundreds of small, sexually explicit images. It is concluded that on January 10, 2007, Mr. Weiss accessed the site containing the sexually explicit images. On January 12, 2007, another Chaperone report was generated based on activity from a computer in Mr. Weiss’ classroom. Ms. Jones became concerned that Mr. Weiss may have been using a student account to mask his usage of the computer. She contacted Mr. Alton, who told her to wait until a pattern of activity occurred and have Ms. Fitzpatrick go to the classroom while the activity was occurring. Another Chaperone report was generated, and Ms. Fitzpatrick took the report and went to Mr. Weiss’ classroom. She found Mr. Weiss alone on the computer. When she came into the room, he minimized the window that he was viewing on the computer. She put the report on his desk and told him that there was a problem. Mr. Weiss responded that he had been looking up the word “boobs” because a student had accessed it during class. However, the search term that triggered the Chaperone report was “blow job.” The Chaperone report listed the activity being generated by Mr. Weiss’ account. Mr. Weiss offered to share his internet browsing history with Ms. Fitzpatrick. After Mr. Weiss left for the day, Ms. Fitzpatrick and Ms. Jones went to Mr. Weiss’ classroom to check the computer to see which sites had been accessed. The history had been deleted. The computer could not be restored back in its entirety to an earlier date because there was no restore data to use. Ms. Jones ultimately used a third-party software to bring back a list of the files viewed. Ms. Jones and Ms. Fitzpatrick recorded the list of files and reviewed them. There were thousands of files, many containing image files from inappropriate sites. About 70 percent of the files were sexual in nature and about 30 percent were jokes. Mr. Weiss had accessed these inappropriate sites. Mr. Weiss attempted to blame students for accessing inappropriate sites. He maintained that he kept a log of incidents in which students were accessing inappropriate sites. The log was never found, and, prior to being confronted with his own access to inappropriate sites, Mr. Weiss never mentioned a log to administrative staff at Tice Elementary or that students were accessing inappropriate sites. Mr. Weiss’ testimony that he maintained a log is not credible. Mr. Weiss resigned from his employment with the School District by letter dated February 5, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Robert E. Weiss guilty of violating Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6b-1.006(5)(a) and revoking his certificate for six years. DONE AND ENTERED this 14th day of November, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008.
The Issue The issue in this case is whether Respondent, Daniel Presmy, committed the violations alleged in the Recommendation for Suspension and Termination for Employment, and if so, what disciplinary action should be taken against him.
Findings Of Fact Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third-grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave.2 The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Palm Beach County School Board find Presmy had inappropriate physical contact with a student but apply the progressive disciplinary policy to determine his punishment. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to removed her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels and Vernon Clark. He didn't see Horne. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. At no time did she name Borne in her statements. Nettie Thomas testified that Bennie Horne was one of the students who held her arms while she was being held on top of the teacher's desk. At hearing was the first time Thomas named Horne as having been present or involved in the incident. Robinson thought Horne was involved because one of the other boys said Horne was there. No evidence was presented which established Horne's presence and involvement except the victim's testimony. In resolving this apparent conflict between the testimony of the victim and her failure to name Horne previously, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report does not specifically name Bennie Horne. In light of this written statement and lack of direct or corroborative evidence of Horne's presence, and having judged the demeanor of the various witnesses, it is found that Bennie Horne did not hold the arms of the victim in order to restrain her on the desk during the sexual assault and was not shown to have been present at all. Bennie Horne had no record of misconduct at Brownsville Junior High School prior to this incident. He was not a disruptive student and his academic performance was satisfactory.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order returning Bennie Horne to the regular school program and reversing the determination that Horne be placed or retained in an educational alternative program. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985. COPIES FURNISHED: Ms. Gloria Horne Parent of Bennie Horne 2631 N. W. 49th Street Miami, Florida 33142 Frank R. Harder, Esquire Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps School Board Clerk School Hoard of Dade County 1450 N. E. Second Avenue Suite 301 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami Florida 33132
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
Findings Of Fact Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School. James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories. Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental. The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use. Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/ After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental, Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards. On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students. Upon arriving at the school, Mr. McCallum and Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report. Mr. McCallum requested that Ms. Gribben accompany Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing, Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk." Mr. Makowski came to the principal's office. Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches. Mr. Culbert then began to question Mr. Makowski about his inappropriate searches. Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches. Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop. Mr. McCallum urged Mr. Makowski to be honest. Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation. Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes. Mr. Makowski surrendered his laptop computer to Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours. On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report, Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children. All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches. Mr. McCallum's report concluded as follows: On Monday, September 20, 2010, after Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds, Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act. The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting. Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident. The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students. Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges. "Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay. Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/ At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report. Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum. Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination. Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality." During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment." Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing. At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned. Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board. At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention. No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer. Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact. Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned. Mr. Makowski has not been subject to discipline by the School Board prior to this case. In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement. The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011. In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2011.
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to remove her clothing and she was fondled and touched by Several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. Nettie Thomas identified Richard Daniels as having served as a "look out" by looking out of the back door of the classroom toward the principal's office and as having warned the others during the assault that the assistant principal, Mr. Robinson, was coming. Richard Daniels was in room 101 when the sexual assault took place and he had been in the room before the female victim was pulled into the room. He was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class. However, Richard Daniels denied having served as a lookout during the incident. In resolving this apparent conflict between the testimony of the victim and the testimony of Richard Daniels, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report does not specifically name Daniels by name as having been the lookout, but does indicate that a lookout warned that the assistant principal was coming. In light of this written statement and having judged the demeanor of the various witnesses, it is found that Richard Daniels did serve as a lookout and did warn the others during the sexual assault. Richard Daniels did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her. Richard Daniels had an extensive record of misconduct at Brownsville Junior High School prior to this incident. Those incidents included fighting, disruptive behavior, disrespect to teachers, provocative language and threatening a teacher.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Richard Daniels to the McArthur Senior High School North. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985. COPIES FURNISHED: MS. NETTIE DANIELS PARENT OF RICHARD DANIELS 1924 N. W. 49TH STREET MIAMI, FLORIDA 33142 FRANK R. HARDER, ESQUIRE ASSISTANT SCHOOL BOARD ATTORNEY TWIN OAKS BUILDING, SUITE 100 2780 GALLOWAY ROAD MIAMI, FLORIDA 33165 MS. MAEVA HIPPS SCHOOL BOARD CLERK SCHOOL BOARD OF DADE COUNTY 1450 N. E. SECOND AVENUE SUITE 301 MIAMI, FLORIDA 33132 DR. LEONARD BRITTON SUPERINTENDENT OF SCHOOLS DADE COUNTY PUBLIC SCHOOLS 1410 N. E. SECOND AVENUE MIAMI, FLORIDA 33132
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated December 17, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educator's certificate and are alleged to have violated provisions(s)of Section 1012.795 and related Rules. In cases where there is clear and convincing evidence to support any alleged violation, Petitioner is responsible to bring the case forward to the Education Practices Commission (EPC) for the imposition of discipline. At all times material to this case, Sanchez holds a Florida educator's certificate and is certified to teach social science. Sanchez was employed as a social studies teacher at Pinellas County's Northeast High School from January 1996 until August 8, 2001. He resigned on that date when confronted with the allegations which give rise to this case. Sanchez is a second-generation educator. Over the years he has been an effective teacher in a variety of settings, and has had a positive impact upon the lives of many students. At times relevant to this case, Sanchez had personal problems which he describes as "marriage problems, ex-wife hassles, money issues, lack of focus." In an effort to address the "money issues," Sanchez took a part time job at Sam's Club (Sam's), where he continues to work. At times relevant to this case, Sanchez was considered an excellent employee and team player by both Sam's and Northeast High School. At times relevant to this case, Sanchez shared a classroom at Northeast High with a teacher colleague. Each was provided by the Pinellas County school district with a classroom computer with Internet access. The computers were to be used exclusively for pedagogical purposes, including work related communications. Sanchez knew or should have known that the use of his classroom computer for non-professional purposes, including the exchange of sexually explicit or suggestive e-mail, or to download pornography, was expressly prohibited by the Pinellas County school district. At all times material to this case, the Pinellas County school district protected all of its computers with a so- called filter program called Net Nanny. The program's purpose is to filter out inappropriate websites, including pornographic websites. However, the Net Nanny filter is easily defeated if an Internet service provider such as America On Line (AOL) is installed on an individual computer. For that reason, the Pinellas County school district properly prohibited teachers from installing AOL on their assigned classroom computers. Sanchez claimed not to know of this prohibition, but the fact finder credits the testimony of Assistant Principal Cynthia Hearn (Hearn), Northeast High's technology specialist, who had a clear and precise recollection of having personally instructed Sanchez to remove AOL from his computer at least six months prior to the events giving rise to this case. Sanchez freely admits that at all times relevant, AOL was on his classroom computer and frequently utilized because he considers it "an amazing resource for teachers." At all times relevant to this case, AOL users have access to an "instant message" service. Sanchez claims that at relevant times, he confined his use of this service to brief messages such as "I'm on the way home" to his then-wife. Sanchez also admits to using the instant message service "on a fairly regular basis" to participate in informal work-related discussion chat rooms with "several colleagues that had . . . similar set ups on their computers at work as well. " Sanchez' description of his use of AOL was less than forthcoming. At times relevant to this case, Sanchez established Internet accounts in names such as "FunkyLoverMan99@yahoo.com" and used these accounts to access the Internet via AOL for purposes of exchanging sexually explicit and sexually suggestive e-mail with a woman with whom he was having an extra-martial affair. In addition, at times relevant to this case Sanchez downloaded a substantial amount of adult pornography to his classroom computer. Some of these unauthorized uses of the classroom computer occurred during hours when students were in the classroom. There is no evidence regarding what, if any, specific pornographic images or sexually inappropriate e-mail was viewed by any student. Sanchez' misuse of the classroom computer came to the attention of Northeast's administration on March 6, 2001, when two students from Sanchez' class were sent to the office of Assistant Principal Harry Brown on disciplinary referral. The girls alleged to Brown that Sanchez was using his computer for personal e-mail and further claimed they had seen pictures of girls on his computer. After school, Brown, accompanied by Hearn, entered Sanchez' classroom and turned on the computer assigned to Sanchez. Brown noticed an AOL icon and asked Hearn to launch the program. She did so, and immediately the AOL instant messenger program opened and revealed messages directed to Sanchez. Hearn reviewed the computer's records of websites which had been accessed that day. Some appeared to be teen- oriented sex sites. The computer assigned to the teacher who shared Sanchez' classroom was also turned on and its content reviewed. No inappropriate websites or programs were found. Brown and Hearn seized the central processing unit of Sanchez' computer and locked it in a closet in the main office. The following day, Michael Bissette (Bissette), chief investigator for the Pinellas County school district's Office of Professional Standards, reviewed the history as recorded on the central processing unit with regard to websites which had been accessed on Sanchez' computer. Finding a number of pornographic sites, Bissette turned the central processing unit over to law enforcement to determine if any crimes had been committed. It is the policy of the Pinellas County school district not to conduct any administrative investigation of an employee during the pendency of a criminal investigation, nor to allow a teacher to teach while under criminal investigation. Accordingly, the Pinellas County school district made arrangements to have a substitute teacher cover Sanchez' classes indefinitely pending the outcome of the criminal investigation. Sanchez was at first unaware he was under investigation because for much of March 2001, he was on leave for reasons related to the illness and subsequent death of his father. Upon his return from leave on or about March 29, 2001, Sanchez went to his classroom to prepare for the day and was soon confronted by an assistant principal who told Sanchez to gather his things. Sanchez was thereafter escorted off campus. Months later, law enforcement returned the case to the Pinellas County school district, having determined that there was no evidence that any crime had been committed. However, an analysis of the central processing unit revealed that thousands of adult pornographic images had been downloaded to the computer assigned to Sanchez. Pursuant to Pinellas County school district procedures, Bissette arranged a meeting with Sanchez and his union representative Betty Shields (Shields) to be held on August 8, 2001. At that meeting, and on other occasions prior to the final hearing, Sanchez admitted accessing adult pornography sites. He has consistently denied accessing teen pornography. This is a distinction without a difference in context of this case, because at all relevant times, the Pinellas County school district had a zero tolerance policy with reference to the use of its computers to access pornography of any kind. Employees believed to have abused computer access in this manner are in all cases offered the opportunity to resign in lieu of termination proceedings. Pursuant to that policy, Sanchez was offered, and accepted, the opportunity to resign his teaching position with the Pinellas County school district. At hearing, Sanchez insisted that Bissette coerced his resignation through the use of tactics which were improper and possibly illegal. Sanchez further testified that he submitted to Bissette's coercive tactics in part because he had incompetent union representation. Shields died prior to the hearing and thus was unable to be present to defend herself. The trier-of-fact carefully observed the demeanor of Bissette and Sanchez as they testified regarding all aspects of this case, including the circumstances surrounding the resignation. Under all of the circumstances, including the documentary evidence; the motivation to recall events in a particular light; and the level of detail one would reasonably expect each to be able to recall after three years and in light of the relative significance of the meeting to each man who was present, it is determined that Bissette's recollection of the circumstances surrounding the resignation is much closer to the truth than Sanchez'. In particular, it is determined that Sanchez' resignation was not coerced. The fact that Sanchez resigned voluntarily is not deemed to be an admission of any nor all of the conduct alleged in the Administrative Complaint, and has not been considered with respect to the matter of whether or not the alleged violations were committed by Sanchez. In addition to accusing Bissette and Shields of incompetence or worse, without corroborating evidence of any kind, Sanchez also repeatedly suggested--again without corroboration of any sort--that other individuals were responsible for some or all of the pornography found on his computer. Specifically, Sanchez attempted to cast suspicion upon student helpers, workers involved in construction projects at Northeast High, and even the teacher with whom Sanchez shared his classroom. This tactic was ill-advised and unavailing. Sanchez does not contend, nor could he, that anyone but he was responsible for the e-mail exchanges between himself and his mistress. With reference to the pornographic websites, it is emphatically noted that there is not a shred of evidence connecting anyone but Sanchez to such websites. Sanchez appealed for sympathy for his personal problems, and made repeated efforts to draw attention to his years of exemplary teaching service. It is not necessary to decide when, if ever, a professional's personal problems would justify seeking refuge in pornography and an extramarital affair, inasmuch as Sanchez seeks exoneration, not mercy. Sanchez' blanket denial that he downloaded pornography is not credited. In addition to making baseless accusations against innocent third parties, Sanchez' credibility was tainted by deceptive testimony at hearing about even inconsequential matters. For example, Sanchez was asked if he visited his mistress on the way to school in the mornings. He replied, "On occasion, yes." Under follow-up questioning, he acknowledged, "It was actually a fairly regular visit." To take another example, in the course of attempting to implicate others in the misuse of the computer, Sanchez intimated that former students, present in the classroom to "grade papers," had access to the computer. Asked to explain why former students would have been grading papers, Sanchez amended his testimony to say that former students would come by his class to "help out," but not to grade papers. The lack of candor exhibited by Sanchez in his hearing testimony is not, of course, proof of the charges set forth in the Administrative Complaint. It does, however, provide an extra measure of confidence in the proof offered by Sanchez' colleagues who testified regarding their knowledge of and concerns regarding his trustworthiness and continued efficacy as a teacher. Pursuant to the Pinellas County school district's above-described zero tolerance policy, Sanchez will not be restored to employment as a teacher in that district, regardless of the outcome of these proceedings.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Respondent guilty of violating Subsections 1012.795(1)(f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006 (4)(c). It is further RECOMMENDED that Respondent’s teaching certificate be suspended retroactive to August 8, 2001, through and including the date of the entry of a Final Order by Petitioner, followed by five years of probation under conditions deemed appropriate by the EPC. Such conditions may reasonably include evaluation by a mental health professional with training in pornography addiction to determine if Sanchez poses any risk of repeating the conduct which gave rise to this case; and denial of access to a classroom computer and/or periodic examination of any classroom computer by appropriately trained personnel. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 29th day of October, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Robert E. Sickles, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33601-3310 Joan Stewart, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue The issue in this case is whether just cause exists to impose discipline on Respondent, David Meyer, for violating provisions of statutes, rules, and/or policies, and, if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees within the Franklin County School system. There is one large public school in Franklin County: Franklin County School (the “School”), which contains grades pre-kindergarten through 12. There were approximately 1,220 students enrolled at the School in the 2014-2015 school year. There are approximately 170 employees working for the School Board. There is also a charter school and one private school in the county. At all times relevant hereto, Mr. Meyer was a teacher at the School. At the time of his termination from employment by the School Board, Mr. Meyer was teaching an alternative education class (referred to as “SOAR”) containing only a few students. His classroom was located in Building 8, Room 807, located just behind the School administrative building. Mr. Meyer has been employed by the School Board since 1990 and has held various teaching positions. He also served as the IT director for the School Board for approximately 10 years, but returned to the classroom in the 2013-2014 school year when Eagle Tree Technologies took over IT responsibilities. Mr. Meyer’s teaching certification is in science. During his entire career with Franklin County schools, he was never disciplined before the events related to the present case. Eagle Tree Technologies has a contract with the School Board to provide IT services to the School. Eagle Tree Technologies will be referred to herein as “the IT department.” In August 2014, i.e., at the start of the 2014-2015 school year during which all events of the present action took place, Mr. Meyer was tasked with teaching students in the SOAR program, a project intended to help children who were struggling with school for one reason or another, mostly behavioral or absentee issues. At the beginning of the school year, there were no students in Mr. Meyer’s classroom. Because he had no students of his own to teach, Mr. Meyer would fill in for teachers who were out sick, in training, or otherwise absent from their classrooms. As the year progressed, a few students were assigned to SOAR. Mr. Meyer basically taught those students in all of the core subjects, i.e., math, science, reading, language arts, civics, and history. When the first SOAR students were assigned, Mr. Meyer had several computers in his classroom: his teacher workstation, two or three student computers, his personal computer, and at least one laptop. At some undisclosed time in August 2014, Mr. Meyer was having trouble getting his teacher workstation to “come on right away.” In order to remedy that problem, Mr. Meyer “wiped” his computer and re-installed Windows 7. He did not check with the IT department before doing so, but admits that he probably should have. As a result of Mr. Meyer’s actions, the IT department could not access Mr. Meyer’s computer by way of its “TeamViewer” remote access program. Herrington left Mr. Meyer a note on his classroom white board, telling Mr. Meyer to reconnect to the School network. In December 2014, just prior to the School’s winter break, the IT department sent out an email to all staff warning against non-School Board-issued computers (including laptops) being connected to the School network. There was at that time a concern at the State Department of Education of potential computer hacking in statewide test sites. Personal laptops were a potential source for hacking. Mr. Meyer had, in fact, issued a warning against the use of personal laptops on the School system when he was the IT director back in 2013. Shortly after the IT department’s email warning went out, Herrington went into Mr. Meyer’s classroom and saw non- School Board computer equipment plugged into the School network portals. The equipment included a personal desktop computer, a laptop, and an external hard drive, among other items. Herrington notified an assistant principal, Ms. Walker, about what he had observed in the classroom. On January 6, 2015, Herrington, Ms. Walker, and Patty Kramer (media specialist at the School) went to Mr. Meyer’s classroom to confirm Herrington’s observations. The equipment was just as Herrington had reported. Per Ms. Walker’s direction, Herrington unplugged all the personal computer equipment from the School network. They stacked that equipment in one corner of the room and placed a sign saying “Personal” on top of the equipment. Before leaving the classroom, Herrington made sure that only School-authorized equipment was plugged into the school network. Meanwhile, Ms. Walker organized the classroom, cleaning up superfluous papers and books. The next day, January 7, Ms. Walker went back to Mr. Meyer’s room to address her findings with him, but he was absent from work that day. She came back on January 8 and talked with Mr. Meyer about what she had done two days earlier in his classroom. Ms. Walker also reminded Mr. Meyer that students were to work only on student computers, not on Mr. Meyer’s teacher workstation or on unauthorized laptops. She told him that the personal computer equipment should not be re- connected to the School system. About three weeks later, Ms. Walker went to see Mr. Meyer and saw a student sitting at the teacher workstation. She called Mr. Meyer outside the classroom and reminded him of their conversation earlier about students using his workstation. In February 2015, Herrington noticed that an inordinate amount of the School’s bandwidth was being used. He was able to track the use to Building 8 and then to Room 807, Mr. Meyer’s classroom. When he went into the room to determine what was causing the bandwidth usage, he saw that the personal computer equipment was again plugged into the School network portals. Conversely, the School Board-issued computers were not plugged into the network and their keyboards were in various states of disrepair. The teacher’s workstation was also plugged into the network. Herrington reported his findings to his supervisor, Ward, but did not address the situation with Mr. Meyer directly. On February 18, Herrington, Ward, and London went to Mr. Meyer’s classroom at approximately 6:00 in the evening to further investigate the personal computer equipment situation. They took pictures of the room and inventoried all the equipment found there. A computer audit was conducted of the computers found in the room. Herrington made copies of the computer internet histories and files. He attempted to copy the external hard drive but its contents were too extensive, so he took the hard drive back to his office where he had better copying capability. He was able to copy much – but not all – of the hard drive. The hard drive was then returned to Mr. Meyer’s classroom. Later, on or about February 24, Ward went back to Mr. Meyer’s room for the purpose of confiscating all of the computer equipment. The hard drive was missing at that time and, as of the date of the final hearing, has not been located. Mr. Meyer did not shed any light on the status of the external hard drive in his final hearing testimony. The computer audit showed that there were unauthorized computers and equipment connected to the School network, there were inappropriate internet sites visited on the computer and/or appearing on the hard drive, and there was some suspicious software on the computer. It also appeared that Mr. Meyer had attempted to circumvent the School network security system by plugging a “switch” into one of the school portals. There were two portals in the classroom, one for the teacher workstation and one for the teacher’s school-issued telephone. The switch gave Mr. Meyer the ability to allow other computers to access the teacher’s portal. This connection would presumably give users the ability to surf the internet with fewer restrictions than a student would normally encounter. Unfettered internet usage would increase the possibility of allowing a virus into the school network. That access could potentially give students the ability to access confidential school information. There was also a “bridge,” which provides some sort of network connection, at Mr. Meyer’s desk. He admits that he bought the bridge and brought it to the classroom. However, he was never able to figure out what it was to be used for and so he never connected it in the classroom. His explanation begs the question of why it was lying out on his desk, but that question was never answered at final hearing. The appearance of the bridge, in conjunction with the other devises, is – at the very least – suspicious. One of the unauthorized items found in Mr. Meyer’s classroom by the IT department was an external hard drive, which was connected to Mr. Meyer’s personal computer, which was, in turn, hooked up to the School District network. Mr. Meyer admitted bringing the hard drive to his classroom. He would transport it in his backpack and, on most days, take it home at the end of the school day. The hard drive contained a large amount of data and materials dating back several years. Ward and Herrington found many unauthorized programs on Mr. Meyer’s external hard drive, his teacher workstation, and/or his personal computers. On Mr. Meyer’s laptop computer, for example, there were programs that should only be used by the school network administrator, i.e., Ward and Herrington. Some of the unauthorized programs and material found on Mr. Meyer’s personal equipment by the IT department include: Windows Password Blocker – which could possibly have been used by Mr. Meyer to gain administrative privileges on his computer. This particular software can also help remove a password from a system so that an unauthorized person could access that system; IP Hider Pro – which is used most frequently to hide a user’s history on the internet, or, as Mr. Meyer maintains, it could be used simply to avoid advertisers who rely on a user’s history; A Hacker’s Life – which included a chapter about how to create a computer virus; Virtual Machine (VM) software – which gave Mr. Meyer’s laptop access to his teacher’s workstation; Inappropriate YouTube videos – including sexually- related videos, various prank videos, and others; A how-to book on oral sex – which included provocative pictures and explicit sexual language; and A list of XXX-rated sex questions – which also included provocative photographs and content. As to the Password Blocker, IP Hider Pro, Hacker’s Life, and VM software, Mr. Meyer said those were things he was curious about and investigated. He said that despite his IT background, he was not able to successfully install the programs and never was able to use them. Mr. Meyer’s explanation for the programs on his computer and hard drive is not persuasive and seems inconsistent with his IT background. There was also one instance when someone using Mr. Meyer’s personal computer made a Google search entitled, “Like a hacker; five steps.” If a student did that, it would be a problem; if Mr. Meyer made the search, it suggests more to the hacking issue than admitted by Mr. Meyer. As to the books on oral sex and sex questions, Mr. Meyer’s explanation seemed to change, depending on who asked him about them. In response to his counsel’s question, Mr. Meyer said he downloaded the books “last year sometime.” When asked again on cross examination, Mr. Meyer said that it might have been someone else who downloaded those things, he just did not remember. Although Mr. Meyer said none of his students saw those books, his failure to adequately supervise students means that he could not be certain of that fact. One concern of the School Board was that Mr. Meyer had a “TOR” browser installed on his computer. A TOR is generally used by people who are pirating movies and software and do not want to be detected. It is another tool, like the IP HiderPro, to help users avoid detection. Mr. Meyer admits using the switch and bridge; he asserts that the only reason for doing so was to have enough portals for his laptop, a personal printer, and sometimes other devises. The fact that it also allowed his students access to the internet while using computers in the classroom seems to be lost on Mr. Meyer. Mr. Meyer says he brought his personal computer and laptop into the classroom as a possible means of convincing his students not to destroy computer equipment. He reasoned that if he let the unruly students use his personal equipment instead of School-issued computers, they would be more likely to treat it properly. There is no credible support for this contention. The students had broken keyboards, mouse(s), and other equipment previously. And when they did so, Mr. Meyer did not contact the IT department to have the equipment repaired or replaced. Instead, he came up with the idea of replacing the equipment with his own personal equipment. The use of his personal equipment, however, violated School policies concerning outside, unauthorized equipment being connected to the School network. It was also a violation of School policy to allow the students to use his teacher workstation (even if, as Mr. Meyer alleged, other teachers allowed that to happen as well). The IT department did not find any actual harm to the school network caused by Mr. Meyer’s actions, nor did they find that a major security breach had occurred. However, it is clear there was a strong potential for harm and for a breach. For example, students were using the teacher workstation and the laptop to access social media sites and surf the internet. Students potentially had access to Mr. Meyer’s programs concerning hacking into a computer system. At one point, it was clear that Mr. Meyer’s teacher workstation and his personal computer were being used simultaneously. During that time, there were questionable and inappropriate internet websites being visited on the computers. For example, at least one person was accessing Facebook on the teacher workstation, a clear violation of School policy. Clearly, Mr. Meyer was not properly supervising students who were using the computers in his classroom. He, in fact, admits his failure to adequately supervise his students. His supposition that perhaps his daughter was using one of the computers while he worked on the other is not very likely when looking at the kind of sites being visited during the simultaneous usage. Mr. Meyer admits violating School policy regarding changing or altering a School computer by creating a second account on his workstation. He admits using the TOR browser on his personal computer when it was plugged into the School system. He admits putting a thumb-drive into his teacher workstation, but denies the IT department’s finding that he did so 10 to 15 times a day. Mr. Meyer admits that plugging additional devises into the School system could increase the potential for risk. Both the superintendent of schools and the principal at the School have serious reservations about allowing Mr. Meyer to hold any position at the School due to the fact that he could not be trusted to properly utilize the School computer system. While there could be ways to limit his access or restrict his usage, neither the Superintendent nor the Principal would be comfortable because Mr. Meyer could possibly find a way to circumvent the limitations or restrictions. There are essentially no teaching positions at the School which do not require some use of computers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Franklin County School Board, upholding the termination of Respondent, David Meyer's, employment for the reasons set forth above. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 14th day of September, 2015.
The Issue Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
Findings Of Fact Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract. During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work, the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old. On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell. On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent. Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay. On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the $50.00 to Respondent. After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer. After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested. Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl. After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request. On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka. Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse. On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation. Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting. While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00. When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away. When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion. Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell, and requested that he be removed from her class because she did not want to come in contact with him. Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class. During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr. Mitchell on one occasion. However, Respondent did not give details of the time, place, or circumstances surrounding that encounter. Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class. During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person. During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear. The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell. Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be dismissed from her position as a teacher with the Pinellas County School Board.DONE and ENTERED this 4th day of April, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997. COPIES FURNISHED: Keith B. Martin Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Ms. Dorothy Simon 6315 Eight Avenue North St. Petersburg, Florida 33710
The Issue The issue in this case is whether a district school board is entitled to terminate a teacher’s employment for just cause based upon the charge that he committed misconduct in office.
Findings Of Fact Sapp is a teacher in the Broward County Public School System. At the time of the events giving rise to this proceeding, Sapp was serving as a teacher, track coach, and Athletic Director at Silver Lakes Middle School (“School”). As Athletic Director, Sapp was entrusted with a “master” key that allowed him access to most buildings and offices in the School, a privilege not available to all teachers. Most of the School’s teachers, including Sapp, were assigned a laptop computer. A teacher’s laptop was either an IBM-compatible Dell or an Apple Macintosh. The School did not have on hand a surfeit of laptops but rather just enough for most teachers to have one. Sapp’s was an Apple Macintosh. The School’s technology specialist was Julian Kuilan, who had started work in that capacity in January 2001. Among other things, Mr. Kuilan was responsible for taking care of the computers that were assigned to the teachers. On Thursday, February 22, 2001, Mr. Kuilan was in possession of a Dell laptop computer that he intended to assign to a teacher the next day. When he left work that afternoon, Mr. Kuilan stored the Dell laptop under his desk,1 where it was concealed from casual visitors, and locked the door to his office, which was situated in the School’s media center. The media center, too, was locked for the night. At around 8:00 p.m. that evening, Sapp returned to the School after a track meet. He remained on campus until all of the adults and students who were with him had left the vicinity. Then, at around 8:30 p.m., when Sapp knew that he was alone except for the custodial crew, Sapp used his master key to enter, first, the media center and, next, Mr. Kuilan’s locked office. Once he was in Mr. Kuilan’s office, Sapp located the computers hidden under the desk and picked up a Dell laptop. Sapp left Mr. Kuilan’s office with the computer and departed the media center through the back door (not the front door through which he had entered). He took the laptop to his own classroom and stashed it there. Sapp then left to go home. In the parking lot, he bumped into the School’s security specialist, Mr. Stevens, who was washing a bus.2 Sapp did not mention the computer to the Mr. Stevens. When Mr. Kuilan arrived for work the next morning, Friday, February 23, 2001, he quickly discovered that one of the laptops which had been placed under his desk the previous afternoon was gone. He promptly notified the administration of the loss. The School’s principal, Mr. Traeger, immediately initiated an investigation to determine the whereabouts of the missing computer. The police were called, as was the School’s Special Investigative Unit (“SIU”). The SIU assigned an investigator named Kathleen Andersen to the case. Meanwhile, that Friday morning, as others were trying to find out what had happened to the laptop, Sapp returned to the media center to borrow a VCR. Sapp did not mention to anyone in the media center, including Mr. Kuilan, that he had entered Mr. Kuilan’s locked office the night before and removed a computer——which, as only Sapp knew, was presently located in Sapp’s classroom. Later that day, around 3:00 p.m., Mr. Traeger convened a meeting in his office to interview persons, such as the night custodial staff, who had access to the media center and might have been on campus when the computer was taken. Sapp was summoned to this meeting because he held a master key and had been at the School after hours due to the track meet. When Sapp arrived at the principal’s office, Mr. Traeger told him that a computer was missing and inquired whether Sapp had seen anyone enter the media center on Thursday night.3 Sapp answered that he had not and was excused.4 When he left work that Friday, Sapp did not take the laptop computer home with him for the weekend of February 24-25, 2001. The computer remained in his classroom. That same weekend, Ms. Andersen (the SIU investigator) obtained data from the motion detectors in the media center. This information enabled the investigator to home in on the likely time frame during which the computer had been taken and to pinpoint the areas in which the culprit had been present. Knowing these facts would facilitate the review of the surveillance videotapes that were the product of the many security cameras located around the School’s campus——cameras that operate 24 hours a day, seven days a week. On Monday, February 26, 2001, Ms. Andersen arranged to watch the surveillance videotapes the next day.5 For his part, Sapp came to work as usual that Monday——and said nothing to anyone about the laptop he had taken from Mr. Kuilan’s office. When he left in the evening, Sapp took the laptop home and placed it in his attic. On Tuesday morning, February 27, 2001, Ms. Andersen reviewed the surveillance videos. When she did, she discovered that the cameras had captured the image of the man who had taken the computer——and it was someone she knew. Right away, Ms. Andersen recognized Sapp as being the person shown in the film exiting the media center with a laptop computer. Ms. Andersen informed Mr. Traeger, who then personally viewed the tapes. He, too, identified Sapp without difficulty. They decided that Sapp needed to be questioned right away. Sapp was attending an athletics-related off-campus meeting that morning when he received a telephone call from Mr. Traeger, who instructed Sapp to return to the School immediately. Sapp complied, and he arrived in the principal’s office around noon, where he met Mr. Traeger and Ms. Andersen. Sapp was asked whether he could provide any additional information concerning his activities on the night of February 22, 2001, that might shed light on the circumstances surrounding the disappearance of the laptop. Sapp became upset and asked that Ms. Andersen leave the room so that he could speak privately with Mr. Traeger. She left. Alone with Mr. Traeger, Sapp finally admitted that he had entered the media center the last Thursday night, although he still did not reveal that he had taken the computer. The principal asked Sapp if he was confident enough about these facts to write a statement. Sapp said that he was and wrote the following in longhand:6 When coming back for the track meet on Thursday 22nd of Feb. I open the boys locker room for the boys to dress from the track meet. After boys dress me and the girl track coach went to the back and check and see if all the kids was gone. We entered the school east side of the school. Going up the hallway. Then we stop by the teacher lounge. Then went in the west hallway. I stop by the media center on the west side for a min. The girl track coach kept walking. So I caught up with her to walk her to her classroom. We stay in the classroom for about five min then she walk out the west side to her car. We talk for a min or so. Then she left. I walk back up the hallway. I went into the teachers’ lounge. Then I came out enter the media center. I came out the back of the media center. I went into the east hallway into the locker room to pick up my books. Then I went to the classroom and check and see how things was left after the sub. Then I walk out to the park lock. Mr. Stevens was in the park lock. I spoke to him. Then his son drove up. Mr. Stevens told me that he lock his keys in the car and that why his son came back. I told him that I am going to go. I was very sleep and I would see him tomorrow. Arnie Lee Sapp 2-27-2001 Sapp’s written statement was not the whole truth and, indeed, was misleading in its omission of the material fact that Sapp had taken the computer out of Mr. Kuilan’s office. At some point in the ensuing discussion, Mr. Traeger confronted Sapp with the evidence of the videotapes and offered to let him resign if he would confess and return the computer. Shortly thereafter, Sapp confessed to Mr. Traeger (but he did not resign). After Sapp had admitted taking the computer, Mr. Traeger called Ms. Andersen back into the room. By this time, Sapp was visibly distraught and crying. He continued to make incriminating statements, such as “I’ve done something really stupid” and “I’ve let a lot of people down.” Sapp also alarmed the others present by talking about “end[ing] it all on Friday”——which they interpreted as a possible threat to commit suicide. Eventually, Sapp calmed down and assured Mr. Traeger and Ms. Andersen that he was not going to hurt himself. Notably, however, despite being asked, Sapp did not disclose why he had taken the computer, giving only the vague explanation that “personal issues” had forced him to do it. As the meeting ended, Sapp agreed promptly to return the computer. Ms. Andersen and another officer followed Sapp to his house, where the laptop was retrieved. Sapp’s Exculpatory Scenario Except as noted, the basic material facts in the above account were largely undisputed. Where the litigants mainly part company is over the veracity of Sapp’s present explanation for his actions. What follows is a brief summary of Sapp’s exculpatory scenario. Sapp claims that he “borrowed” the Dell laptop on February 22, 2001, so that a friend with good typing skills would be able to use it to prepare the program for a March 8, 2001, track meet while Sapp and this friend attended Sapp’s college reunion in North Carolina, where they were scheduled to be from Friday, March 2, 2001, to Sunday, March 4, 2001. According to Sapp, an IBM-compatible Dell was needed for this task because he was having trouble printing documents stored in the Apple Macintosh laptop that had been assigned to him. Sapp, in sum, maintains that he had a legitimate purpose for taking the computer. On the surface, Sapp’s story has, at best, a patina of plausibility, and a bit of probing wipes even that away. To believe Sapp would require the making of too many assumptions that are out of step with common sense and everyday experience—— assumptions that are, in the final analysis, incompatible with a reasonably likely hypothesis of innocence. To start, there is the manner in which Sapp acquired the laptop. The facts are that Sapp took the property at night when the campus was nearly empty; that he used a master key to open locked doors and enter another employee’s office; and that he removed the computer from a location in that office which can fairly be called a hiding place. To explain this suspicious conduct, Sapp asserts that the School’s equipment checkout policy was not always strictly followed and that he had been permitted, in the past, to borrow property without observing the formal sign-out procedures. Assuming this is true, however, there is no credible evidence that the School ever tolerated conduct similar to Sapp’s. Moreover, common sense instructs that, barring an emergency,7 a teacher having a legitimate reason to use school district property will not simply take the property by stealth but will ask, at least informally, for permission. It is, therefore, not likely that Sapp would have taken the computer as he did if his intentions were good. Next is the fact that, time and again, Sapp never mentioned to anyone that he had taken the computer, when common sense dictates that an innocent person would have done so. It is, of course, highly probable that Sapp, as a reasonable person, knew that the disappearance of a laptop computer from Mr. Kuilan’s locked office likely would cause a stir——which is why, if Sapp truly had taken the computer for the reasons he now claims, Sapp almost certainly would have told someone (probably Mr. Kuilan) at the very first opportunity on Friday, February 23, 2001. Sapp’s continued silence is inconsistent with innocence. Making matters worse for Sapp is that he remained silent even when asked by the principal on the afternoon of Friday, February 23, 2001, about suspicious activity in the media center the night before. Sapp now concedes that it was a “mistake” not to tell the Mr. Traeger the supposedly exculpatory truth that day, and clearly it was——but it was more than that. If Sapp were innocent as he now claims, common sense teaches that he would have revealed everything to Mr. Traeger then and there. Sapp’s silence at this point is not only inconsistent with innocence but also circumstantial evidence of guilt; the reasonable inference is that he was covering up a known wrong. By now, Sapp’s story is so discredited that to note that on February 26, 2001, Sapp secreted the computer in his attic seems gratuitous, but that is the incriminating fact. Of greater significance, however, is that on Tuesday, February 27, 2001, during the second meeting with Mr. Traeger concerning the missing laptop, Sapp again failed to tell the whole truth and signed a written statement for Mr. Traeger that omitted the material fact that he had taken the computer. It is nearly impossible to imagine that Sapp, if innocent, would have continued actively to conceal this fact; common sense suggests that an innocent person would have spoken up long before it became necessary for Mr. Traeger to produce the inculpatory surveillance videos. At bottom, to fit Sapp’s story to the undisputed objective facts concerning his conduct demands belief in an improbable set of circumstances that ultimately defies belief. The simpler explanation for Sapp’s conduct, in contrast, is credible and probable: Sapp stole the computer and then attempted to cover up the misdeed until, when confronted with the videotapes, he was compelled to confess. Ultimate Factual Determinations Sapp’s taking of the laptop computer on February 22, 2001, was, if not theft as defined in the criminal law, at least dishonest and hence in violation of Rule 6B-1.006(5)(a), Florida Administrative Code (employee shall maintain honesty in all professional dealings). In addition, by using the master key with which he had been entrusted as a perquisite of his position as Athletic Director to gain unauthorized access Mr. Kuilan’s office, Sapp violated Rule 6B-1.006(4)(c), Florida Administrative Code (employee shall not use institutional privileges for personal gain or advantage). Sapp committed separate violations of Rule 6B- 1.006(5)(a), Florida Administrative Code, when he knowingly concealed material information from his principal on February 23, 2001, and again on February 27, 2001. Sapp violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), when, on February 27, 2001, he tendered a signed, written statement to Mr. Traeger that omitted material facts and was, as a result, false and misleading. Sapp’s misconduct, which violated several principles of professional conduct as noted above, also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as acts of dishonesty and fraud necessarily demonstrate a failure to sustain the “highest degree of ethical conduct.” Sapp’s violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. Contrary to Sapp’s argument, the evidence amply supports this finding. Indeed, Sapp’s own testimony, in which he admitted having breached the confidence and trust that had been reposited in him as a teacher and Athletic Director, was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Further, as a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion. Yet, as Sapp admitted at hearing, if a student athlete had engaged in conduct similar to his own, that student would be dismissed from the athletic program and probably expelled from school. Obviously, having committed acts that would subject a student to severe repercussions, Sapp’s effectiveness as a role model has been seriously compromised——perhaps (and hopefully) not irreparably, but grievously nonetheless. Based on the above findings, it is determined that Sapp is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Sapp’s suspension without pay effective September 11, 2001, and discharging him from further employment in the Broward County Public Schools. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of September, 2002.
