The Issue Whether Respondent violated Lake County School Board Policy 2.71 as described in letters from the Lake County Superintendent of Schools dated January 2, 2007, and January 7, 2007, and if so, what penalty should be imposed.
Findings Of Fact The School Board of Lake County is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material to this proceeding, Paul Ogles was employed as an English/speech teacher at the Curtright Center of Eustis High School in the Lake County School District. Mr. Ogles, a Caucasian male, has been employed as a teacher for the District for nine years. At all times material to this proceeding, Ms. Bernetta McNealy, an African-American woman, was employed as a teacher at the Curtright Center of Eustis High School. Ms. McNealy's classroom is adjacent to Mr. Ogles' classroom. During the 2005-2006 school year, Ms. Tess Rogers was an assistant principal at Eustis High School and one of Mr. Ogles' supervisors. Mr. Michael Elchenko was Principal at Eustis High School during this time, and Ms. Rebecca Nelsen was the Director of Compensation and Employee Relations for Lake County School District. Mr. Ogles' first teaching position was as a teaching assistant with Project Outward Bound at Morris Brown College, a historically black college in Atlanta, where he prepared high school students for college. Mr. Ogles returned to teaching twenty years later after running his own textbook company. Mr. Ogles has received excellent evaluations during his employment by the Lake County School District. Once a teacher receives a rating or twelve (the highest rating possible) for two consecutive years, the educator may choose to participate in a PG-13 Appraisal of Professional Growth/Career Development instead of receiving the normal educator evaluation. Mr. Ogles qualified for this type of evaluation and successfully participated in the PG-13 appraisal process for several years. Mr. Ogles has sponsored or assisted with many school organizations such as the Beta Club; the Chess Club; the Key Club; the High Q Club; and the Speech and Debate Club. He used personal funds to support the students' activities, including paying $300.00 to rent a bus so students could attend a competition. Mr. Ogles was one of two Team Leaders on campus and in that capacity worked with the assistant principal to try to upgrade the quality of the school and to increase interaction between students and teachers. He also volunteered for bus duty before and after school. While performing bus duty, it was often Mr. Ogles' responsibility to enforce the school's dress code as students arrived on campus. Eustis High School has a policy of prohibiting students from wearing clothing with symbols or messages that may be considered disruptive to the learning environment. Students are not necessarily disciplined for wearing such clothing, but are requested to remove the offensive clothing, turn it inside out so as to hide the offensive message, put other clothing on over it or call home to have alternate clothing provided. The Confederate flag is one such symbol that is not allowed to be displayed on clothing worn to school. Dixie Outfitters is a line of clothing that sometimes bears the Confederate flag. Mr. Ogles was aware that the school policy forbade the wearing of the Confederate flag and he often was involved in enforcing the policy against students wearing the symbol. On or about May 19, 2006, Mr. Ogles was using his computer to search for project ideas for the following year while his students were taking a test. He was looking at a website called www.cagle.com, a political website from which he has gotten cartoons in the past. Several cartoons from this website are posted in his classroom, and there was no evidence presented to indicate that anyone had ever complained about their display. While viewing the website, he saw a cartoon that depicted a Confederate flag. However, instead of the traditional "stars and bars," the cartoon showed black arms crossed, with stars imprinted on them. The hands were extended beyond the flag, with the wrists shackled. The cartoon was originally published in approximately 2000, as a means of protesting the consideration by several southern states to display the Confederate flag at state buildings. When Mr. Ogles first saw the cartoon, he thought that it was "strong art" depicting the Confederate flag as a symbol of racism. In between classes, he showed the cartoon to Ms. McNealy. He asked her if she was familiar with students wearing Dixie Outfitters clothing. She indicated she was not. He stated that perhaps this cartoon could be placed on a new line of clothing for black students to wear in response to the "heritage" argument white students used to defend the wearing of the Confederate flag. The conversation was very short, as the bell was ringing for the next class to begin. Ms. McNealy did not respond to Mr. Ogles or give him any indication that she was offended or bothered in any way. There is also no evidence that she ever discussed her feelings about the cartoon with Mr. Ogles at any later time. Mr. Ogles testified, and his testimony is credited, that he believed that because the cartoon advocated a position against the display of the Confederate flag, that it would support what he believed to be Ms. McNealy's position on this issue. It is his view that African-Americans have as much ownership of the Confederate flag as anyone else, and should be able to use the image to express their views. While Ms. McNealy did not tell Mr. Ogles that she was offended by the cartoon, she did make her feelings known to Ms. Rogers, the assistant principal and Michael Rivers, a guidance counselor at the Curtwright Center, almost immediately. Ms. Rogers is Caucasian and Mr. Rivers is African-American. Both found the cartoon to be offensive. After speaking with Ms. Rogers and Mr. Rivers, Ms. McNealy left campus for the day. About an hour after he showed Ms. McNealy the cartoon, he was asked to come to the office and was informed by Ms. Rogers and Mr. Jones, another administrator, that Ms. McNealy was upset about the cartoon and had left campus. Mr. Ogles did not realize that Ms. McNealy would be offended by the cartoon and had he realized she would be offended, he would not have shown it to her. On May 22, 2006, Mr. Elchenko, the Principal of Eustis High School received a written complaint from Ms. McNealy about Mr. Ogles' showing her the cartoon.1/ Mr. Elchenko determined Mr. Ogles' conduct to be unprofessional and issued a Professional/Personal Action Report Relating to Work Experience (Appraisal II form) and Prescription/Assistance Form to Mr. Ogles. Both documents directed him to stop giving materials to co-workers that could be considered offensive. Mr. Ogles has complied with these directives. After Mr. Elchenko completed his investigation, Mr. Elchenko reported the allegations to the School Board's District office because he believed the allegations in Ms. McNealy's complaint rose to the level of racial harassment. Rebecca Nelsen conducted an investigation on behalf of the School District. Mr. Ogles was reassigned from his teaching position at Eustis High School to the County Copy Center by letter dated July 17, 2006, and remains in that placement today. Ms. Nelsen determined that Mr. Ogles' conduct created an intimidating, hostile or offensive work environment on the basis of race, which is prohibited by School Board policy. Ms. Nelsen recommended to the Superintendent that Mr. Ogles' employment be terminated. A separate investigation was conducted for the School Board by a private entity called the Robert Lewis Group. The findings and recommendations of that investigation are not part of this record. By letter from the Superintendent dated January 2, 2007, Mr. Ogles was suspended without pay for the period from January 8, 2007 through January 12, 2007, and was directed to receive cultural sensitivity training for violating School Policy 2.71. There is no evidence submitted to indicate that the Superintendent's decision was approved or ratified by the Lake County School Board. Mr. Ogles served his period of suspension and successfully completed cultural diversity training. Before this incident, Mr. Ogles had never been accused of making any appropriate racial remarks and was not considered to be a racist individual. He had expressed the view that racism should hold no place in education. His principal did not question his competence as an educator.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the charges against Respondent, and rescinding all discipline previously imposed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of June, 2007.
Findings Of Fact During the 1981-82 school year the student was enrolled as a seventh grade student at H. H. Filer Junior High School in Dade County, Florida. On October 21, 1981, the student left his home carrying a knife, with the intention of not attending classes on that day. The student met his girl friend and a friend, Ivan Martinez, at a cafeteria adjacent to the campus of H. H. Filer Junior High School. Upon learning that his girl friend intended to attend classes that day, the student, while still off campus, gave the knife to Ivan Martinez to keep for him, with the understanding that Martinez would not attend classes that day. Thereafter, Martinez decided to go to class, and gave the knife to Eddie Hidalgo to keep. Hidalgo then decided to attend class also, where he was discovered by a teacher in possession of the aforementioned knife. Hidalgo was sent to the principal's office after the knife had been discovered and, during questioning by the principal, implicated the Respondent. Although the Respondent admitted to the principal that the knife belonged to him, he denied having the knife on his person on the school grounds. However, the student was suspended for ten days and, on November 20, 1981, was administratively assigned to Jan Mann Opportunity School North. While serving his ten-day suspension as a result of the knife incident, the Respondent was charged with trespassing on the campus of H. H. Filer Junior High School. There is no evidence in the record of this proceeding concerning either the facts surrounding or the disposition of this trespass charge or several other trespass charges which occurred after Respondent had been administratively assigned to Jan Mann Opportunity School North and which are, therefore, immaterial to the issues involved in this proceeding. Petitioner called the principal at H. H. Filer Junior High School as its only witness in this proceeding. The principal had no direct knowledge of any incidents of disruptive behavior engaged in by the Respondent prior to the date of his assignment to Jan Mann Opportunity School North. None of the students' records were produced at final hearing, nor were any teachers or other witnesses who might have direct knowledge of any incidents of disruptive behavior called to testify. The principal testified generally about the student's excessive rate of absences during the 1980-81 school year, and noted poor conduct grades for the student during that same period. Indeed, these earlier incidents appear not to have had any effect on the decision to seek the student's reassignment for, when questioned about whether the student had the above-described knife in his possession on campus the principal testified ". . . there was evidence . . . to indicate that the knife was in his possession on school grounds, or we would not have made the recommendation based on what we made the recommendation on." It therefore appears that the sole triggering cause for seeking Respondent's reassignment to Jan Mann Opportunity School North was the allegation that he possessed a knife while on school property.
The Issue Whether Respondent committed any of the acts alleged in Petitioner’s Amended Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Background on Mr. Alden Mr. Alden began working as an educator in 2004 when he was hired to work at the Clark County Alternative School in Athens, Georgia. When that school closed in 2009, Mr. Alden relocated to Clark Central High School. After taking a year off to care for his terminally ill mother, Mr. Alden relocated to Florida and took a position with Gateway High School in Osceola County in 2011.3 In 2017, Mr. Alden took a teaching position with Lecanto High School (“Lecanto High”) in Citrus County, Florida. During the 2018-19 school year, Mr. Alden was an economics and government instructor at Lecanto High. He also taught one section of world history. Allegations by students regarding Mr. Alden’s conduct led to the initiation of an investigation in September of 2018 and the issuance of a written reprimand on September 25, 2018. A second investigation began on May 2, 2019, but was closed on May 9, 2019, due to Mr. Alden’s resignation from Lecanto High. Mr. Alden worked as a sixth-grade world history teacher at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. As explained in more detail below, two incidents during the 2019-20 school year led to Mr. Alden not being recommended for reappointment. 3 Mr. Alden holds Florida Educator’s Certificate 1186313, covering the areas of Educational Leadership, Elementary Education, Gifted, and Social Science, which is valid through June 30, 2022. Findings as to Whether Mr. Alden Referred to Students as “Dumb,” “Stupid,” or Words to that Effect S.H. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. S.H. has a learning disability and reported in September of 2018 to her case manager, Karen Harper, a math teacher at Lecanto High, that Mr. Alden would become angry with her for asking questions. Mr. Alden supposedly displayed that anger by sighing heavily and telling S.H. that she didn’t know what she was talking about.4 S.H. offered the following testimony during the final hearing: Q: Tell us about what your concerns were in Mr. Alden’s class. A: Well, I was – not repeatedly, but I have heard him putting down students. On top of that I was making a statement about something he said and he said that I didn’t know what I was talking about and that I was stupid. Q: Okay. Now, did that bother you what Mr. Alden said to you? * * * A: Yes, sir. Q: When he called you stupid, did he say this in front of other students? A: Yes, sir. Q: What you just told us here today, was that some of what you told Mr. Harper? 4 Ms. Harper also acted as a case manager for a student named A.M., who stated to her that Mr. Alden referred to him as stupid and a failure when he sought assistance from Mr. Alden. Because A.M. did not testify during the final hearing, the portion of Ms. Harper’s testimony concerning A.M.’s allegations is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). A: Yes, sir, * * * Q: Okay. You say he has put you down when asked questions. What do you mean by that? What did he do? What was going on? * * * A: Like anything I would say – and, honestly, it sounded pretty dumb in my mind as well, my questions, but I could understand why he put me down, but it’s still unacceptable. But I was just saying things that provoked it. So. He put me down, like, you know, called me, you know, stupid, tell me I wasn’t – I didn’t know what I was talking about. Like that. Q: Okay. So even if you felt like you asked a dumb question, you didn’t expect him to call you stupid in front of your peers? * * * A: Yes. Because my other teachers don’t do that. Q: Okay. How did that make you feel for him to call you stupid? A: Not good. It just made me feel kind of depressed, like I wasn’t good enough for his class. Just did not feel good about it. Other former students of Mr. Alden’s from the 2018-19 school year did not corroborate S.H.’s testimony. For example, J.S. testified that Mr. Alden implied that particular students were dumb or stupid but never directly said so. However, J.S. did not explain how that implication was expressed. K.S. did not remember Mr. Alden using the words “dumb” or “stupid.” M.M. could not recall any instances in which Mr. Alden demeaned a student. C.S. denied ever observing Mr. Alden disparage a student or call a student “stupid” or “dumb.” B.S. never heard Mr. Alden call a student “dumb” or “stupid” and did not recall Mr. Alden disparaging or embarrassing any students. S.C. never witnessed Mr. Alden disparage or belittle any students and never heard Mr. Alden call any students “stupid” or “ignorant.” M.J. never observed Mr. Alden disparaging any students or call a student “dumb” or “stupid.” R.C. denied ever observing Mr. Alden disparage a student. When asked if he remembered Mr. Alden explaining the difference between “stupid” and “ignorant,” R.C. gave the following testimony: A: I remember the comment. If I believe. I mean, it’s been two years, but to my best knowledge I believe that the comment was made on the note that, as long as you’re – as long as you’re trying and you’re asking questions and you’re trying to be engaged and learn, that you can’t be stupid. But if you’re choosing not to learn and you’re choosing not to try and give no effort, then you’re just ignorant. But you can’t be stupid as long as you try. Q: Okay. And did you ever observe Mr. Alden, you know, directly, call a student stupid or dumb? A: No, sir. Mr. Alden vehemently denied Petitioner’s allegation that he referred to students as “dumb” or “stupid”: A: I spent 15 years in the classroom working with kids that have been disparaged by their community and their families. Came to me using I am stupid as their – as their – as an excuse for not putting effort into their education. They had to – they had been convinced that there was no point in trying because they weren’t – they were going to fail. I spent 15 years, from the minute I walked into the classroom, trying to convince these kids that they were not stupid, that they were, in fact, more than capable and trying to deprogram them from the belief that there was no point in trying. I made, every year, the first day of the – the first day of class I made a point to illustrate to the kids that there was a difference between ignorant and stupid. Because a lot of them conflated those two terms. I would point out that ignorant means you have not learned and stupid means you cannot learn. And to drive the point home, especially with the age group that I worked with, I went into a little conversation about human growth and development and the formation of the prefrontal cortex and that that’s the part of your brain that allows you to make rational decisions and it doesn’t finish forming until your early-to-mid 20s. * * * I also used the secondary working definition of stupidity that ignorant means you don’t know any better and stupid means you know better, but you do it anyway. And I use that to short circuit what a lot of these kids would interpret as a disparaging remark from other adults. That when an adult might say, that was stupid, they weren’t talking about you as a person, they’re talking [about] your actions. * * * Q: How often would you have to have that sort of discussion with your students? A: Well, as I said, I would do it at the beginning of the term, just to sort of begin that deprogramming process. I would also reiterate the lesson at every available opportunity. If I heard a kid say, I’m stupid, I would stop the world and point out to them, no, you’re not, you can’t be. It’s physiologically impossible and all the rest. If I heard a kid disparage another student, say that was stupid or are you stupid or don’t be stupid, I would clarify for both the student making the comment as well as the student the comment was towards, that that’s not how you want to say that. You want to say, that was careless, that was thoughtless, that was reckless. Not that that was stupid. And stress to the student that was – that had engaged in observable behavior that could be defined as a stupid action and say, look, you’re not stupid. You knew better. Think about what you’re doing before you do it. And, you know, you don’t have to worry about people coming to the wrong conclusions. Findings as to Whether Mr. Alden Told His Students That a Class Was Divided Into “Smart” and “Dumb” Sections S.B. was a sophomore at Lecanto High during the 2018-19 school year and had Mr. Alden for world history. When asked about how Mr. Alden seated students in his classroom, S.B. gave the following testimony: A: He would separate the classroom. Smart people would be in the back of the classroom and then the dumber kids, or what he would refer [to as] the kids who failed the test or didn’t make good enough grades, he would put them in the front and refer to them as dumb. Q: How did you know Mr. Alden was putting the smart kids in the back? A: He had said it. Q: And the not so smart or dumb kids in the front? How did you know that? A: He had said it himself. A kid has asked why we were being separated and he just said that he had separated the kids because the smart kids go in the back and the dumb kids go up front, is what I had overheard in the class period. Q: Okay. Did that make you feel any particular way when he would put – separate kids like that? A: Yes. Because that’s not how a teacher should be speaking to their students. So I don’t think that was right. * * * Q: Now, even though you’re in the smart group, did you feel bad for the kids that were in the, what he described, as you say, the dumb group? A: Yes, of course. Because he would always repeat and make it known that those were the dumber kids. Q: Okay. And what did he tell you he based putting the smart kids in the smart group and the dumb kids in the dumb group? How did he – did he tell you how he made that determination as to which kids were going to go in any particular group? A: Usually it would be because of the quiz grades or the test grades that we had received [that] day. J.D. was a senior at Lecanto High during the 2018-19 school year and was one of Mr. Alden’s students. J.D. offered the following testimony about Mr. Alden’s method of seating students: Q: Okay. Let’s start talking about [allegation] 3-A. Tell us what you know about 3-A. A: All right. So 3-A, it says that in the classroom he referred to students as dumb or stupid. I never heard him actually refer to any individual student individually as dumb or stupid, but I know that he did refer to people collectively as not willing to learn. But I do not know that he actually referred to any [ ] particular student as dumb or stupid. Q: Did you hear him use those words toward any group of students as being dumb or stupid? A: Implied, yes. But not directly. Q: Okay. What do you mean when you say implied? A: So, like, in the next part, in 3-B, when he divided the section into smart and dumb students. And smart students were in the back and dumb students were in the front. That did happen and that does imply that he thought that those kids were not as smart as the kids in the back. Q: Okay. So, by the way, were you in either one of those groups? A: Yes, I was. I was in the back. Q: Okay. So, you were in the smart kids’ group; is that right? A: Exactly. Q: Okay. Now, how did you – did you – did that make you feel in any way? How did you know that the smart kids were in the back and the dumb kids were in the front? I mean, how did you know that? A: Because it’s what the other kids were saying. The other kids in the class. It made them feel that the kids in the back were better than they were. And those were – those are words from the students. Like, when I was – so, in the class, I was in the back and me and another student in the back would – we would, you know, bicker and argue. So I asked Mr. Alden to move me to a different setting so that we just wouldn’t bicker and argue anymore. And when I was sitting with those students, they would always refer to me as the smart kid in the group. And it made a distinction. It actually, in a way, segregated the class based on the level of intelligence. * * * Q: Okay. Did Mr. Alden tell you that [was] why he was separating [students] into different groups? The kids who scored well on the exams were put in the back and the kids who didn’t score well, they were put in the front. A: Exactly. That is how he explained it in the beginning of the school year. Q: Okay. And you were talking about the interaction between the kids. Based on the way he had told you all he was segregating you with the kids that scored well in the back and kids that didn’t score well in the front, did that cause some tension or problems between the students in the classroom? A: I wouldn’t say tensions, but it did ostracize people who sat in the front, people who sat in the back. And then when you, like, try to talk to people from a different area, it was, like, you were either below them or above them. Q: Okay. And that was discussions among the students based on where they were placed; is that correct? A: Right. And that is my experience from sitting in a different group. K.S. was aware that Mr. Alden based students’ seat assignments on their class performance. However, he testified that Mr. Alden “never said that we were either stupid or smart in one place or another.” R.C. gave the following testimony about the seating arrangement: Q: How was the seating arrangement in Mr. Alden’s classroom, if you recall? A: It varied. Normally we could sit kind of wherever we want[ed] when we came in. But then, after test days, we would be split into groups where the first row back, if I recall, the highest test grades would be in one area and the lowest test grades in the other. We’d talk and go over the test and then we would be split into groups based on lowest test grades with the highest test grades put together and all mixed out so that everybody could help each other and help each other learn. Q: Okay. And did you find this effective? A: I believe so. Because some days I had a bad test and someone else did better and they could help me. Then if I had a better test and someone else didn’t, I could help them. You got to know everybody in the class better and I feel, again, it was just very productive overall. Q: Did the seating arrangement ever cause you any embarrassment? A: No, sir. C.S. testified that the seating arrangement helped “students that weren’t really doing well on their tests by putting students that had lower grades on tests up in front. That way [Mr. Alden] could do one-on-one with them, if needed.” When asked if the seating arrangement ever caused him embarrassment, C.S. testified that, “I actually really enjoyed it since there would be certain lessons I didn’t understand that well and so being up closer to him, it allowed me to, like, get his attention and be, like, can you help me understand this.” When asked about the seating arrangement in Mr. Alden’s class, B.S. testified that “he just put it to where he thought would be the best for people that needed to learn a little bit better. But it wasn’t like anything like embarrassing or anything like that. Like it was what he thought was the best seating arrangement to do.” S.C. seemed to agree when asked if Mr. Alden ever announced that he was dividing a class “between dumb students and smart students.” However, S.C. testified that no one took any offense and that the seating arrangement never caused him any embarrassment. M.J. did not recall students being seated based on test scores, but she did remember that students who needed more help were placed closer to the front of the classroom so that they could get Mr. Alden’s attention. She denied ever hearing Mr. Alden state that he was dividing a class into smart and dumb sections. Mr. Alden readily acknowledged that he placed students in different sections of his classroom based on test scores during the time in question and had used this method during seven school years: After the first unit test, they were grouped by their test score. So the highest performing students were in the back of the room. They were – my independent learners were in the back of the class. And the lowest scoring kids in the group were my dependent learners and they needed more support from me and I put them in – not necessarily in the first group because the very first group was closer to the door to the classroom. The second and third – the second, third – no, wait. One, two, three. The second, fifth and fourth groups were the ones closest to my desk. And that’s where I arranged the students that needed more help with the content. And sometimes it was a bad test taker or sometimes they were having trouble with the read – with reading comprehension. Sometimes it was an issue with communication with their peers. And having them closer to me allowed me to observe their interactions and, where necessary, step in and provide one-on-one support and determine if I had to address a learning deficiency or if it was a struggle – they were struggling with a particular piece of content. Mr. Adlen denied referring to students as being in “a dumb section or stupid section”: Whenever the students would make comments to that – to that end, I was vehement and immediate in my correction of it. I made – on numerous occasions I would say that the kids in the back of the room might have gotten a hundred percent on the test and the kids in the front of the room might have gotten a 90. That I only have limited amount of space and I can’t put every A in the back of the room. I don’t have enough room to put everybody in the back of the room. So everybody’s got to go somewhere and it -- ending up in the front of the room does not mean you’re low performing. It doesn’t mean you have a poor performance. There’s no such thing as good enough grades. * * * The folks in the front are the folks that need support. The folks in the back are – I’m able to leave to their own devices. Findings as to Whether Mr. Alden Used Profanity in the Classroom S.H. testified that Mr. Alden uses the words “bitch” and “shit” in class. S.C. read from a prior written statement in which he stated that Mr. Alden is “very blunt, uses uncalled for words. He speaks about other students, but doesn’t use specific names, like mistakes they have done. He cusses, such as words as damn, shit and hell. He’s used the n-word before. Does not think before he speaks.” S.B. testified that Mr. Alden “would curse a lot” and used the words “bitch,” “shit,” and “ass.” That made S.B. uncomfortable because she thinks that teachers should not be using such language around students. J.S. testified that Mr. Alden used the words “bitch,” “shit,” and “hell” in class. J.S. added that Ms. Alden expressed his preference for Milton Friedman’s economic theories by stating that John Maynard Keynes “didn’t know shit.” O.L. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. She testified that Mr. Alden told a joke5 to a student in which the set-up was “what is the difference between a bitch and a ho?”6 K.S. remembered Mr. Alden using the term “shit” at least a couple of times. He also remembered the joke described by O.L. R.C. testified that Mr. Alden occasionally used profanity in the classroom. However, according to R.C., Mr. Alden did not use profanity in a derogatory manner and did not direct any profanity toward any students. C.S. denied hearing Mr. Alden ever say anything inappropriate. Mr. Alden7 conceded during his testimony that he had a relaxed attitude toward profanity: Q: The Amended Administrative Complaint in 3-C states, specifically, Respondent used profanity in the classroom, including the words bitch, shit and hell. Could you respond to that accusation? A: Incidental profanity was not a thing that I made a big deal about. It was more that the students engaged in it than that I participated in it. I did participate in it, but very infrequently. 5 The Amended Administrative Complaint did not mention the joke at issue, but Mr. Alden did not assert that he was not on notice that testimony regarding the joke would be used to substantiate the allegation that he used profanity in the presence of students. 6 I.G. did not testify at the final hearing but a written statement from her was accepted into evidence as part of Petitioner’s Exhibit 6. I.G. wrote that “Alden said ‘this is a joke’ and asked the class not to tell, because I believe some other students were making jokes about being called a whore, then he said ‘What’s the difference between a whore and a bitch? A whore gets with everyone and a bitch gets with everyone but you.’” Even if I.G.’s statement was offered to prove that Mr. Alden made the statement at issue, I.G.’s statement supplements and corroborates O.L.’s testimony. Accordingly, I.G.’s statement is admissible. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). 7 As noted in the Preliminary Statement, Mr. Alden is deemed to have admitted using profanity in the classroom. It originated with students in the class using that language without sign of disquiet. They – I remember distinctly one student saying to me, Mr. Alden, I really like your class because you talk to us about real shit. And I was, like, whoa. But he showed no signs that he was aware that he had said something inappropriate and nobody in the class showed signs that it was an inappropriate thing to say. At that point I noticed that it was – it was not an infrequent thing among the students. So rather than make it – I mean, I worked at an alternative school where I dealt with juvenile felons. I worked in a school where we – our number one problem was kids getting into gang fights. So in my career there had just been bigger fish to fry and more important issues to address. So, at Lecanto, when the students informed me, through their behavior, that incidental profanity was not a thing that they were going to get bent out of shape about, I tried to manage it in what I thought was the best way possible. I made very strict rules. Nothing over – nothing more than PG-13. Nothing that you would not hear on commercial television in prime time. And the f-word – never in anger, never towards another person, never used to aggress against another student, never used to disparage or insult another student. And the f-word was forbidden. Mr. Alden denied ever using the n-word. With regard to the testimony that he told a joke with the words “bitch” and “ho,” Mr. Alden offered the following context: I had a senior girl that was in crisis. She was being accused of being a whore by the ex-girlfriend of her current boyfriend. The agitator was a junior. My girl was a senior and she was about to graduate. She was within just a few short weeks of graduating. She came into class [visibly] upset, surrounded by a group of girls who were egging her on and she kept saying she was going to beat her. I tried to intervene to calm her down, kind of talk her off the ledge. * * * So, I did the last thing I could think to do. I just said, hey, do you know what the difference is between a b_ _ and a ho? Because that was the topic that she was upset about. Being called a whore. That got her attention. * * * And I said, so what is the difference. Tell me what the difference is. And it took a little while to kind of talk her through it, but she got the point that it wasn’t about the behavior, it was about the perception of the behavior. That it wasn’t about the person who was acting, it was about the outside observer and their judgment of the person’s behavior. Karen Harper is a teacher at Lecanto High and explained why teachers using profanity in the classroom could be harmful to learning: Q: Now, in your career, do you use those kinds of words in your classroom? A: No. Q: Do you believe – is there any particular reason why you don’t use those words in your classroom? A: It’s not professional. I know that during -- whenever you’re hired, you have to go to – the beginning of school or when you get hired by a county, you have to go through an orientation and they talk about code of ethics and things that they, you know, as a teacher, this is what’s expected of you. And that was just something that was – I know that it’s a code of ethic[s] you shouldn’t be doing that. Q: Well what about just in terms of how – based on what you know about students, how using those kinds – that kind of language impacts students? A: Some students are – you never know. Just like in [the] general population. You don’t know who you’re going to offend, who you’re not going to offend. So it’s best just to avoid it and not say them. * * * Q: Okay. So, but if the teacher wants to characterize a person in a history book as a bitch or something that they did in the context of history as . . . If the teacher, then, wants to say that something that the queen or the king did was shitty, in your professional view, is that an appropriate context to use those kinds of words? A: No. Teachers and students at Lecanto High are prohibited from using profanity. Findings as to Whether Mr. Alden Embarrassed J.S. by Engaging in a Religious Debate and Stating That a Belief of J.S.’s Was “Demonstrably Fallacious” M.M. was a senior at Lecanto High School during the 2018-19 school year, and Mr. Alden was his economics teacher. On a day in early May of 2019, M.M. disclosed to classmates sitting at his table during economics class that he was transgender, and that led to his classmates asking several questions about M.M.’s family life and religious views. When M.M. expressed a favorable view about Jehovah’s Witnesses, J.S. approached the table where M.M. was seated, stood over him, and inserted himself into the conversation. M.M. described the ensuing events as follows: I can’t remember exactly what brought up J.S. joining this conversation. I do remember that I started with saying my own opinion on Jehovah’s Witnesses, stating that it was a truer religion than most that I have viewed. And I remember him walking up to my desk, standing less than a foot over me while I was seated. And I am a very, very short, small man. Very, very scared of many people, especially in high school. He stood over me and he told me right off the bat that I was wrong. And I said, it’s okay, man, no problem. Conversation over. We’re done. And I just acted as if I was going back to my assignment. He was like, no, no, no, you are wrong. And I want to tell you that you are wrong and that Jesus and God are one and the same. And I was, like, okay, that’s your belief, my belief is different. Just, that’s it. He was, like, no, no, man. And I was, like, I don’t want to – I don’t want to deal with someone pushing someone’s beliefs on me right now. You know, I’m in school, I just want to finish my assignment. And he was like, I’m not pushing my beliefs, I’m enlightening you. And as he’s talking to me he is in a way towering over me, is how I viewed it. I’m assuming that Mr. Alden saw that I was getting very uncomfortable and Mr. Alden came to the other side of me, looked at Mr. J.S. and said, you are wrong for doing this to him, you need to back off. And at that point, the conversation diverted, while it was over me, still to J.S. going after Mr. Alden with the same phrases and repeating the exact same argument that he was doing to me. Mr. Alden kindly enough diverted the argument away from my desk and got sort of to the other side of the classroom at that point. J.S. described the events in question as follows: So they were talking about that topic and they were talking – kept talking about, you know, mainstream Christianity. So I walked over there and I wanted to share my belief, since they were already on that topic, to inform them of that in case they were not aware of a different way of thinking, a different way of believing. So I walked over there and I made the comment, I said, did you know that Jesus is God. And after I said that comment, Mr. Alden walked over to me and he said, don’t say that Jesus is God. That’s demonstrably fallacious. And Jesus is God is one of the core beliefs of my faith. The fact that [he] believes that Jesus is God and that God is the Holy Ghost and that all of them are one person is one of the founding principles of what I believe. So in essence, he was saying, don’t say what you believe is true, because it’s clearly and evidently based on something that is false. * * * And after that, he engaged me in a whole debate, trying to prove what I believe to be wrong in front of all of [my] peers. Q: Okay. So his demeanor towards you while he was telling you that what you believe was demonstrably fallacious, what was his demeanor like? A: It was cocky, it was arrogant, it was – it seemed like he thought no one could ever prove him wrong. And even when you tried to use the sources that you draw your faith from, such as the Bible, I was – when we were talking, I was trying to use scriptures that I believe to be doctoral scriptures from the Bible. And he said – he told me that I could not use the Bible because it was inaccurate and false, due to the Council of Nicaea. So he not only was disparag[ing] my faith, but he disparaged the spiritual book that I draw my faith from. Q: Okay. Emotionally how did that make you feel? A: Emotionally, I was embarrassed. I was upset. I was angry. But I was just going to let it -- I was just going to let it go. I was just going to let it roll off – roll off like water on a duck’s back. The undersigned does not credit J.S.’s assertion that he was embarrassed. During his testimony, J.S. presented as a very outgoing and opinionated young man who has no inhibitions about expressing his views and engaging in debates. In fact, J.S. testified that “I am a, you know, I hate to say it, but I am an opinionated person and that tends to get me into discussions based on different topics, such as, you know, politics, opinions, the whole nine yards.” Mr. Alden’s description of this incident corroborates M.M.’s testimony, and his description of J.S. matches the opinion formed by the undersigned: [J.S.] was aggressively opinionated. And I had to remove him from two groups at the request of the members of his groups because he would not acquiesce ever. A big part of the class was they would take quizzes as a collaborative group and they would discuss and debate what was the best evidence for their answers on the quiz. And J.S. would not keep – J.S. would get his opinion on what was the best evidence and he would not hear anyone nay-saying it. So, two different groups of kids said, could you please remove him because we can’t have a debate with this guy. He was also very aggressive about his religious beliefs. And I, on more than one occasion, reminded him that belief is individualized. You cannot require anybody else to agree with your beliefs. If it’s just a matter of a difference of opinion on beliefs, on faith, then you have to agree to disagree. It’s unjust. Otherwise it’s unjust. The particular incident involving M.M. – M.M.’s characterization of the interaction is a lot more intimidating than I thought it was. I just – I just saw J.S. in the back of the room with a group that had asked him to be removed from them. And I stepped up to just sort of reestablish that boundary. That, you know, this is -- this is a group of kids that really doesn’t – they got a problem with you, there’s a personality conflict or something going on here. I had no – I didn’t know that M.M. was feeling bullied at the time. And I – when I stepped to M.M. or when I stepped to J.S., I heard him – all I – I heard him say that Jesus and God are literally the same thing. And I heard M.M. very gently disagreeing, but clearly not wanting to get into a debate – a debate with J.S. I certainly did not want to get into a debate about religious beliefs, so I employed the Socratic method and I just asked J.S., what do you base that on. And J.S. said, I base it on the Bible. And I said, okay. Let me just ask you questions based on your source material and let’s see if we can figure out if that’s an accurate claim. Like, can you make that claim using your own sources. And I just asked him a few simple questions about the biblical nature of God as defined by the Bible and the nature of Jesus as outlined in the Bible and showed the contrast between God of the Bible and the Jesus of the Bible to show him that, okay, that claim, you can’t defend. You can’t make that claim based on the source material. Findings Regarding the Allegation that Mr. Alden Grabbed a Student’s Hair Mr. Alden taught world history at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. K.R.H. was a student at Liberty Middle School that year and had Mr. Alden for eighth-grade history. On approximately October 8, 2019, K.R.H. was walking into Mr. Alden’s classroom and Mr. Alden was positioned near the entrance. K.R.H. had long hair and was wearing it in a ponytail. She testified that Mr. Alden “pulled my hair pretty roughly and it made my head go back a little.” K.R.H. did not say anything to Mr. Alden. However, when she looked back at him, she testified that he was laughing and did not offer an apology. K.R.H. called her parents about the incident, and her father then called the school. Melissa Forsyth, the principal of Liberty Middle School, fielded the call and began an investigation. In addition to interviewing K.R.H., Ms. Forsyth interviewed two other students who witnessed the incident and corroborated K.R.H.’s assertion that Mr. Alden pulled K.R.H.’s hair.8 Ms. Forsyth and her assistant principal viewed security camera footage of the incident9, and Ms. Forsyth discussed the incident with Mr. Alden: And we saw Mr. Alden’s hand go around her ponytail and kind of -- it went up and then her head tilted back as she was walking into the room. Q: Okay. Did you talk to Mr. Alden about that? A: We did. Q: What did he tell you? A: So at first he said that he oftentimes greeted students at the door. High fives, fist bumps, elbows. And he never pulled anyone’s hair. I did take that opportunity and reminded him that there were security cameras in the hallway. And then he said, he swatted at K.R.H.’s ponytail jokingly to flip it and a finger got caught in a tangle. Q: So is it your testimony that when you first talked [to] Mr. Alden about it, he denied ever pulling the student’s hair? A: Yes, sir. Q: And then when you informed him that you had video and you had seen him grab the student’s hair 8 Neither of the alleged witnesses testified at the final hearing. 9 The security camera footage was not offered into evidence during the final hearing. and pull her head back, did he – that’s when he told you what he did was swat at her head? A: Right. I didn’t tell him I saw anything. I just reminded him that there were video cameras in the hallway. Q: Okay. And then that’s when he changed his story about what happened? A: He swatted at her ponytail jokingly to flip it and a finger got caught in a tangle. Q: Okay. Now, is that what you saw when you observed it yourself? A: It did not appear that way. Q: Okay. It appears as you’ve described, that he grabbed her ponytail and pulled her head back; is that correct? A: That it was – that it was around the hand – the hair and then her head tilted back after it went up. While denying that he grabbed and pulled K.R.H.’s ponytail, Mr. Alden testified that his hand accidentally got entangled in K.R.H.’s hair: I was standing at – I was standing in the doorway on the hallway side, greeting students as they came in. The doorway was inset about three feet from the wall. So, if I’m standing in the doorway observing the hallway, I couldn’t clearly see into the classroom. As K.R.H. came in I said, hi, she said hi. And as she – I put my fist out to bump her and as she walked by I – I assume she didn’t see me with my hand out or she was distracted. As she walked by, I swatted at her ponytail, just like, oh, you’re going to ignore me. Okay. Swatted at her ponytail. I wear a ring on my little finger and it got caught – my finger or the ring or some combination got caught in her hair and that’s – that’s why on the camera it appeared to flip up and then get pulled back down because that’s how gravity works. You hit a thing, it’s going to fall back down. Got my finger caught and her head came back and I got my finger out. She kind of jerked. I said, my bad. I couldn’t really say a lot to her because there was another student right in front of me that was in the moment trying to get my attention. So, just – it was just an incidental movement that got taken wildly out of proportion. Findings Regarding the Allegation that Mr. Alden Embarrassed a Student by Touching His Forehead and Saying “Think.” Kayla Palacios was an assistant principal at Liberty Middle School during the 2019-20 school year, and she was conducting a formal observation of one of Mr. Alden’s classes on February 25, 2020. She testified that Mr. Alden was standing at the front of the classroom and directing questions to specific students. When A.C. was unable to answer the question posed to him, Ms. Palacios testified that “Mr. Alden poke[d] A.C. in the forehead with two fingers and A.C.’s head went back.” Ms. Palacios discussed the incident with Mr. Alden later that afternoon and relayed that it is inappropriate for teachers to touch students. According to Ms. Palacios, Mr. Alden “acknowledged it and we moved forward from that conversation.” Because she considered the incident sufficiently significant, Ms. Palacios informed Ms. Forsyth about it the next morning. Mr. Alden described the incident as follows: On this particular day I was being observed, so I wanted to make a good impression on Ms. Palacios. So, I went to A.C. on a difficult question that I was sure he would have the right answer to. And he didn’t. He kind of flubbed the answer a little bit. And when I didn’t give him that immediate, you’re right, he got flustered. And because he was, you know, the teacher’s pet and because he was the guy that always had the right answer, his peers were starting to kind of snicker. There was a little bit of tension between him and the rest of the class that didn’t really bother him, usually. But on this day, when his friends were snickering and he felt like he had it and then realized he hadn’t, he got a little flustered. To try to focus his attention on me and ignore the rest of the class, I very delicately placed two fingers on his forehead, while he was looking up at me. He did not have his head down. He was looking me in the face, trying to figure it out. And I just – and I just – to focus him, stop, think, think about what you’re doing, you know this, you’ve got this. And he did. He came up with the correct answer. And he beamed when he got it right. A.C. did not testify at the final hearing, and there was no evidence as to whether Mr. Alden’s action embarrassed him. Ultimate Findings Regarding Petitioner’s Allegations Petitioner’s first two allegations are closely related. The first alleges that Mr. Alden referred to students as “dumb,” “stupid,” or words to that effect. The second alleges that Mr. Alden told his students that his class was divided into one section for “smart kids” and another for “dumb kids.” Petitioner presented testimony from S.H. and S.D. that clearly supported the first two allegations. Because the other witnesses who testified about these allegations contradicted the testimony given by S.H. and S.D., the undersigned is not left with a firm conviction regarding these two allegations. Thus, Petitioner did not prove the first two allegations by clear and convincing evidence. In contrast, Mr. Alden’s own admission and the witness testimony clearly and convincingly established that Mr. Alden used profanity in the classroom. Moreover, Ms. Harper, a teacher at Lecanto High, persuasively testified why teachers using profanity in the classroom is harmful to learning and would reduce a teacher’s effectiveness. However, there was no persuasive evidence that any students were seriously harmed by Petitioner’s use of profanity. Petitioner also alleged that Mr. Alden embarrassed J.S. by engaging J.S. in a religious debate and telling J.S. that one of his religious beliefs was “demonstrably fallacious.” Even if Petitioner could prove that Mr. Alden characterized one of J.S.’s religious beliefs as “demonstrably fallacious,” Petitioner has not proven that the debate between Mr. Alden and J.S. embarrassed the latter. After having the opportunity to observe J.S.’s demeanor, the undersigned does not credit J.S.’s assertion that he was embarrassed. As for the allegation that Mr. Alden grabbed K.R.H.’s hair and caused her head to be pulled backwards, there is no doubt that one of Mr. Alden’s hands made contact with K.R.H.’s ponytail and caused her head to be pulled backwards. The only question pertaining to this allegation is whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled with it. Other than Mr. Alden and K.R.H, Ms. Forsyth was the only witness to testify about the incident. However, her testimony was based on her observation of security camera footage, and Petitioner did not attempt to move that footage into evidence. As a result, there is no way to ascertain whether the footage was detailed enough for Ms. Forsyth to accurately distinguish whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled within it. In other words, the absence of that footage and the absence of testimony from other witnesses at the scene of the incident precludes the undersigned from finding that Petitioner proved this allegation by clear and convincing evidence.10 10 This finding should not be construed as the undersigned accepting Mr. Alden’s version of events. Even if Mr. Alden simply swatted at K.R.H.’s ponytail, he exhibited poor judgment by doing so. He also exhibited poor judgment by using profanity in the classroom. Petitioner also alleges that Mr. Alden embarrassed A.C. by touching A.C.’s forehead and saying “think” when A.C. was initially unable to answer a question. While the evidence clearly and convincingly established that Mr. Alden touched A.C.’s forehead, there was no evidence as to whether A.C. was embarrassed thereby because A.C. did not testify. Accordingly, this allegation was not proven by clear and convincing evidence.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and 14 Rule 6B-11.007 was last amended on December 10, 2019. None of the provisions relevant to the instant case changed. section 1012.795(1)(j) through rule 6A-10.081(2)(a)1., and that Respondent’s educator’s certificate be placed in probationary status for one year. DONE AND ENTERED this 2nd day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2021. Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
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.
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007.
