The Issue The issues are whether Petitioner has just cause to dismiss Respondent for failing to attend work during duty hours and leaving his class unsupervised so as to constitute misconduct in office, in violation of Florida Administrative Code Rules 6A-6.056(2) and 6A-6.056(4).
Findings Of Fact Petitioner initially employed Respondent as a substitute teacher on February 26, 1990. From January 1991 through June 1991, Respondent was employed as a teacher at Petitioner's Braddock High School. From August 1991 through May 1993, Respondent was employed as a teacher at Petitioner's Coral Park Senior High School. From January 1994 through May 1994, Respondent worked as a substitute teacher at various of Petitioner's schools. From March 1994 through June 1994, Respondent was employed as a teacher at Petitioner's Miami Central Senior High School. Starting in August 1994, Petitioner employed Respondent as a teacher at Miami Coral Park Senior High School. He was continuously employed at this school, except for a suspension from March 13 through April 24, 2014, until Petitioner suspended him on April 13, 2016, for the acts and omissions that are the subject of this proceeding. Spring 2006 marked the first recorded instances of Respondent's attendance problems. On April 5, 2006, Petitioner issued warning memoranda due to Respondent's tardiness. On April 28, 2006, Petitioner summarized a Conference-for-the- Record (CFR) for Respondent's repeated tardiness in reporting for work. A few years later, attendance problems emerged again, evidently at a much greater volume. On March 6, 2013, Respondent failed to report to work at the required time and never called to advise the administration that he would be late. He had also been tardy and failed to call on the two preceding days, as well as on 13 other days during the 2012-13 school year. On March 6, 2013, Petitioner issued a Memorandum of Concern. Respondent was tardy three more days after receiving the memorandum, so, on May 22, 2013, Petitioner issued a CFR summary directing Respondent to report to work on time. On October 15, 2013, Petitioner issued a memorandum determining that Respondent had been selling candy to students without authorization. On November 6, 2013, Petitioner issued a CFR summary containing directives about attendance and selling candy to students. On January 13, 2014, Petitioner issued a CFR summary determining that Respondent had used vulgar language at students, thrown a toilet-paper roll at one student, and commanded the student to get the "fuck" out of his classroom. Petitioner's representatives asked for Respondent's resignation, but he declined to resign. Respondent countered that he was having a difficult year because the administration had "changed drastically" his schedule, and the science department chair had "bullied" him. Before Petitioner had determined the discipline for this offense, on January 28, 2014, Petitioner issued a CFR summary determining that Respondent had taken students off campus in his vehicle, often leaving students unsupervised to pick flowers from a garden for a lab experiment. In response to this charge, Respondent declared that "things have changed and [he] realize[d] that it is a new day." The CFR summary noted that Respondent also had often left his students in the classroom unsupervised; used disparaging language toward students, including calling one student, "retarded"; and kissed the top of the head of a female student. Petitioner's representative offered Respondent the option of resignation, which he again declined. On March 7, 2014, Respondent accepted an offer of a 30-day suspension, evidently for the offenses noted in the preceding paragraph, and he served this suspension from March 12 through April 23, 2014. After the calamitous 2013-14 school year, during which he was disciplined on four occasions, Respondent's offenses focused exclusively on attendance. On February 2, 2015, Petitioner issued an Absence and Tardiness from Worksite Directives Memorandum. This noted absences and tardies on 22 days of the still-ongoing 2014-15 school year. On February 11, 2015, Petitioner issued a CFR summary detailing Respondent's history of nonattendance, noting, in particular, that on January 9, 2015, at about 9:50 a.m., Respondent left his classroom unattended, and several students accessed his computer and changed their grades. Petitioner's representatives advised Respondent that his repeated failure to adhere to directives demanding that he adhere to basic attendance policies would result in gross insubordination upon recurrence. At the start of the 2015-16 school year, Petitioner issued a Absence/Tardiness Directives Reminder memorandum, advising Respondent that the February 11 CFR summary continued to apply. On September 22, 2015, Petitioner issued a Reminder of Absence from the Worksite Directives and a reminder of sign- in procedures. However, between September 22 and October 27, 2015, Respondent failed to sign in on 21 occasions. On October 27, 2015, Petitioner issued a Professional Responsibilities Memorandum covering these 21 violations of Petitioner's attendance policy, and, on November 4, 2015, Petitioner issued a CFR summary reprimanding Respondent for his failure to adhere to attendance policies following a meeting to which Respondent was 20 minutes late. For the preceding 19 months, Respondent had displayed repeated disregard for his basic professional responsibilities, including even attendance. Given the number of violations in a relative brief span, Respondent's compliance with policies would need to improve to rise to the point that it could be described as checkered. While facing discipline for the absences and tardies documented in the October 27 memorandum, two days later, Respondent left the school campus at about 10:00 a.m. to go home and sleep, not informing anyone that he was leaving the campus and not returning to teach his sixth-period class, which, unsupervised, was found milling around a hallway after Respondent had chosen to transform himself from a professional employee to a "no call/no show." The applicable collective bargaining agreement between Petitioner and the union of its instructional employees (CBA) "recognize[s] the principle of progressive discipline," but also requires that the "degree of discipline shall be reasonably related to the seriousness of the offense." CBA, Article XXI, Section 1.A.1. The CBA provides for the suspension or dismissal of instructional employees, as provided by Florida Statutes. Id. at Section 1.B.1.a.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for dismissing Respondent for gross insubordination in repeatedly refusing Petitioner's directives that he attend school and supervise his students. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of September, 2016. COPIES FURNISHED: Kim M. Lucas, Esquire Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Christopher J. La Piano Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Leonel Marrero 1621 Southwest 93rd Court Miami, Florida 33165 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented by these cases is whether fines totaling $350.00 should be imposed upon the Respondent for its alleged failure to report the absence of two residents from the facility, the first occurring on December 4, 1980, and the second on January 7, 1981, to the Petitioner as required by Chapter 10A-5, Florida Administrative Code.
Findings Of Fact The Respondent Jubilee Retirement Center is licensed as an Adult Congregate Living Facility (ACLF) pursuant to the "Adult Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. On December 4, 1980 a sixty-three-year-old female resident of the facility who was on medication left the center sometime between the lunch and evening meal. A thorough search of the Center and the immediate neighborhood by Center personnel proved fruitless and a missing person report was promptly filed by the Respondent with the City of Miami Police Department. (Case No. 339- 3748B). The resident's husband was also contacted immediately by the Respondent. On December 12, 1980, an article appeared at page 4B of the Miami Herald entitled, "Woman Walks Out 0f Nursing Home, Vanishes." The article apparently alerted the Department to the disappearance of this particular resident. Mr. Rosenfeld, Administrator of the Jubilee Retirement Center, was contacted by Mr. Alvin DeLaney, ACLF Program Specialist, on December 12, 1980, concerning this incident and at that time he informed Mr. DeLaney that the resident was located at the Miami Beach Mental Health Center and sent from there to Dodge Memorial Hospital on December 8, 1980. On December 15, 1980, the resident was transferred from Dodge Memorial to South Florida State Hospital. Following this incident, Rosenfeld discussed with DeLaney the requirements of Rule 10A-5-06, Florida Administrative Code, which requires the reporting of major incidents as defined at Rule 10A-5.01(18), Florida Administrative Code, within 24 hours following the occurrence of the incident. Rosenfeld agreed to follow the Rule in the event of any future problems. Rosenfeld was unaware of this Rule since he had not received a copy of Chapter 10A-5 which was mailed by the Department to all licensed ACLF operators in July, 1980. Following his discussion with DeLaney, Rosenfeld also believed that in computing the time limit, three working days would be allowed and weekends and holidays would be excluded. On January 12, 1981, Bill Garrett, then an ACLF Specialist with the Department, received a call from Rosenfeld concerning the disappearance on January 6, 1981, of a male resident from the Center. On January 7, 1981, Center personnel had reported the resident to the City of Miami Police as a missing person and contacted a relative of the resident. From January 17-27, 1981, Rosenfeld was in frequent contact with the Department concerning efforts to locate this resident. The resident was located through an obituary in the Miami Herald which stated that the resident passed away on January 26, 1981 following a heart attack which occurred on January 6, 1981, in a MacDonald's Restaurant near the Center. Following this incident, Rosenfeld agreed to notify the Department within twenty-four hours of discovery of any missing resident. The Center has implemented policies designed to minimize the residents' ability to leave the facility without notifying Center personnel and at the same time guaranteeing basic privacy rights of residents. A twenty-four hour a day sign-in and sign-out sheet is now located at the front desk and alarms have been installed at all other exits. Many of the residents are former mental patients and this coupled with the size and physical lay-out of the facility makes it difficult for the Center to be aware of the movement of all residents. Additionally, at the same time of these incidents the Department had no access to the Missing Persons Report Registry maintained by law enforcement agencies and could do little to assist in the search for missing residents other than contact friends or relatives who might be unknown to the ACLF operators.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order assessing a $100.00 administrative fine for the failure to report a major incident which occurred on December 4, 1980 as alleged in the administrative complaint filed January 23, 1981, and dismiss the complaint filed February 27, 1981 which alleged a failure to report a major incident occurring on January 7, 1981. DONE and ORDERED this 14th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 14th day of July, 1981. COPIES FURNISHED: Martha Barrera, Esquire Department of Health and Rehabilitative Services 1320 South Dixie Highway Eleventh Floor Coral Gables, Florida 33146 Nelson Rosenfield, Administrator Jubilee Retirement Center 8000 Biscayne Boulevard Miami, Florida 33138
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. The School Board has employed Respondent for approximately 15 years as a school security monitor. As such, at all times relevant to this proceeding, Respondent was a non- probationary “educational support employee” within the meaning of Section 1012.40, Florida Statutes, whose employment can be terminated for reasons stated in the applicable collective bargaining agreement, which is the contract between the Miami- Dade County Public Schools and the United Teachers of Dade (the CBA). Article XXI, Section 3.D of the CBA provides that educational support personnel can be terminated for “just cause.” The term “just cause” is defined by that provision of the CBA as follows: . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule [Florida Administrative Code Rule] 6B-4.009. During the 2007-2008 school year, Respondent was a school security monitor assigned to the Lawrence Center. Prior to that assignment, Respondent had been assigned to Miami Beach Senior High School (Beach High School). While at Beach High School, there was a probable cause finding that Respondent had engaged in an inappropriate sexual relationship with a high school student who was over 18 years of age. As a result, Respondent’s employment was suspended without pay for a period of 30 days. Respondent accepted the 30-day suspension and agreed not to appeal. Ms. Durden began working as a Data Input Specialist at the Lawrence Center in May of 2008. Shortly after her arrival, Respondent asked Ms. Durden (then known as Ms. Williams), who was on her way to lunch, to bring him back lunch. The request, which Ms. Durden denied, caused her to feel uncomfortable. Thereafter, Respondent came to come to Ms. Durden’s work area on several occasions and asked her for the mints that she kept on her desk. Ms. Durden believed that Respondent was leering at her. Ms. Durden clearly disliked Respondent and felt uncomfortable in his presence. On June 3, 2008, Respondent was in the parking lot area when Ms. Durden walked by to retrieve an object from her car. Respondent was talking to someone in a parked vehicle. The identity of the person in the parked vehicle could not be established and there was no evidence as to the subject of the conversation between Respondent and the unidentified person in the vehicle. As Ms. Durden walked by, Respondent tried to get her attention by yelling out to her “Hey baby.” Ms. Durden did not respond. When she was on her way back into the school, Respondent told her, “Ms. Williams, I know you heard me speaking to you.” Ms. Durden (Williams) then told Respondent, “My name is not ‘hey baby.’ My name is Ms. Williams, and you address me as such.” There was no evidence that Respondent continued to address Ms. Durden inappropriately. On June 5, 2008, Ms. Durden walked into the after care office to speak to Ms. Staples, who was working as an After Care Specialist. Respondent was in the after care office with several other employees, both male and female. When Ms. Durden walked into the after care office, Respondent blurted out “my dick is hard.” Ms. Durden immediately left the room feeling disgusted by Respondent’s remark. Ms. Staples testified that Respondent made the statement “my dick is on hard.” Ms. Staples and the other employees who had been meeting in the after care office also immediately left the office after Respondent’s statement. Ms. Staples and her colleagues were shocked by Respondent’s statement.2 On June 6, 2008, Ms. Durden and Ms. Santos passed out paychecks or pay stubs to employees. Respondent appeared at the threshold of Ms. Durden’s office, which is part of the main office, and asked for his paycheck. Ms. Durden asked Respondent to leave while she sorted through the paychecks. Ms. Durden was uncertain whether Rich was Respondent’s first name or last name. There was a verbal exchange between Respondent and Ms. Durden as to that issue. Respondent remained outside of Ms. Durden’s office, but in a position where he could observe her. Ms. Durden testified, credibly, that Respondent was leering at her. Ms. Durden became so uncomfortable that she started shaking. Prior to June 6, 2008, Ms. Durden had told Ms. Santos that she did not like Respondent and felt uncomfortable around him. Ms. Santos attempted to keep Respondent away from Ms. Durden by offering to get anything he might need from the main office and bringing it to Respondent’s duty station. On one occasion, Ms. Santos observed Respondent staring at Ms. Durden’s rear end. On June 6, 2008, Ms. Santos observed that Ms. Durden was very uncomfortable being in Respondent’s presence. She intervened by finding Respondent’s paycheck and bringing it to him. Ms. Durden reported these incidents first to Ms. Johnson-Brinson (an assistant principal) and then to Mr. Osborne (the principal). Thereafter the School Board followed all relevant procedures leading up to its vote to discipline Respondent by terminating his employment. Ms. Johnson-Brinson is not aware of any complaints from any Lawrence Center employees other than Ms. Durden pertaining to inappropriate behavior by Respondent. Mr. Osborn testified as to the reasons he recommended the termination of Respondent’s employment. Part of those reasons related to behavior by Respondent during his tenure at the Lawrence Center that was not alleged in the Notice of Specific Charges. That non-alleged behavior is irrelevant and has not been considered by the undersigned in reaching the findings and conclusions set forth in this Recommended Order.3
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 2009.
The Issue Whether just cause exists to suspend and terminate the employment of Respondent, a teacher, for the reasons set forth in the Administrative Complaint.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began his employment with the District in November 2014. Respondent was employed as a math teacher for grades 9 through 12 at PBLHS until December 12, 2018, which was his last day in a classroom. Respondent is an experienced teacher who was trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent completed the orientation process for new employees of the District three times. Respondent signed the District’s Code of Ethics each of the three times he received it and was aware it governed his behavior as an employee of the District. Circumstances Giving Rise to Respondent’s Discipline Respondent met former student, S.E., in Haiti in 2015 when she was approximately 15 years old. S.E. and Respondent worked on a political campaign together. While in Haiti, Respondent became friendly with S.E. and her family. Respondent was aware that S.E. was planning to come to the United States to attend high school. In 2018, while S.E. was an 11th grade student at PBLHS, Respondent was a teacher at the same school. Respondent exchanged phone numbers with S.E. so they could communicate outside of school hours. Respondent and S.E. frequently communicated outside of school hours between 5 p.m. and 11 p.m. by telephone and text messages in Haitian-Creole because S.E. did not speak English. According to Respondent, these conversations were primarily personal, as they had “all kind of conversation from family matter[s], from life, from a sexual content, from – you know, everything. Everything like two normal people. Any conversation that two normal people would take. It was about everything.” On or about December 3, 2018, a student reported to school staff at PBLHS that Respondent sent S.E. an inappropriate text stating, “send me a picture in your underwear.” Respondent allegedly also asked S.E. to go to a hotel with him. Detective Eulises Munoz was called to PBLHS to conduct an investigation regarding Respondent. As a part of Detective Munoz’s investigation, he conducted an audio recorded interview with S.E., with the assistance of an interpreter. As part of the investigation, Detective Munoz had the text messages between S.E. and Respondent extracted from S.E.’s phone and transcribed from Haitian-Creole to English. S.E.’s cell phone call log report revealed 48 calls and 94 messages between S.E. and Respondent between October 26, 2018, and December 4, 2018. Respondent admitted to asking S.E. on November 27, 2018, at 8:04 p.m., for “your picture while you are wearing only your underwear.” S.E. refused but instead sent a picture of herself clothed. Respondent told S.E. that she was “mistreating” him because she would not send a naked picture of herself to him. At the final hearing, Respondent admitted that he was aware that it was against Board policy to have asked S.E. for a photograph of her in her underwear while she was a student at PBLHS and he was a teacher at the same school. The investigation also revealed that on December 4, 2018, Respondent told S.E. that she was having headaches because she was not having sex and then sent her an article regarding stress headaches being relieved by sex. Respondent denied asking S.E. to meet him at a hotel. Disciplinary Action After Detective Munoz completed his investigation into the text conversations between Respondent and S.E., he drafted a criminal Probable Cause Affidavit, which was ultimately forwarded to Human Resource Manager Brenda Johnson for further investigation. Ms. Johnson provided Respondent with a letter acknowledging opening an investigative file based on inappropriate interactions with a student. As of December 18, 2018, Respondent was removed from the classroom and directed to have no further contact with students. He was instead assigned to a District warehouse. Respondent was provided with a Pre-Determination Meeting (“PDM”) Notice dated March 9, 2020, signed by Vicki Evans-Pare, Director of Employee & Labor Relations, explaining to him that the investigation was concerning the allegations levied against him and that a meeting was needed to discuss the findings. Prior to the PDM, Respondent was provided with the PDM Notice, as well as a copy of the investigative file. Respondent’s PDM was held on March 13, 2020, at which time he was given the opportunity to provide a response to the allegations against him. After the PDM was completed, Ms. Johnson typed up the notes and summary from the PDM, which were provided to Respondent who was given three business days to review the documents and make any edits or revisions he felt were warranted and add any additional information relative to the investigation. Respondent did not make any changes to the PDM Summary or Notes. After Respondent’s PDM, Ms. Evans-Pare decided to have the investigative file reviewed by the Employee Investigative Committee (EIC), which found the following allegations were substantiated: Soliciting an Inappropriate Relationship with a Student; Ethical Misconduct; Failure to Exercise Best Professional Judgment; and Failure to Follow Policy, Rule, or Directive. The EIC recommendation was that Respondent’s employment be terminated despite Respondent not having any prior discipline history. The EIC proposed skipping the Progressive Discipline steps (verbal reprimand with written notation, written reprimand, and suspension) because Respondent’s inappropriate interactions with the student, his admission that he had the text conversations with the student, and his request to the student for a picture of her in her underwear posed a direct threat to the District and the student. On May 21, 2020, Respondent was notified that Dr. Donald Fennoy, II, the District Superintendent, would recommend Respondent’s termination to the Board at its June 17, 2020, meeting. Termination was the same disciplinary action that was taken against other employees who engaged in the same or similar conduct. Respondent acknowledged that “[a]lmost everybody” at PBLHS found out about the text conversations between Respondent and S.E. Respondent knew that his co-workers knew about the text conversations because people were calling him and asking him about it. Respondent’s co-workers lost confidence in him as a teacher after they learned about the text conversations between him and S.E. Respondent was also aware that S.E.’s guardians lost confidence in him as a teacher as a result of the sexual text conversations he had with S.E. Respondent acknowledged during the final hearing that his conduct was inappropriate and in violation of the Board’s policies. Respondent only contests the level of discipline (termination) as too harsh. He argued that the Board skipped intervening steps of the progressive discipline policy and claimed that his level of discipline was a result of his complaining that he was not physically capable of the work to which he was assigned in the warehouse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the suspension and termination of Respondent’s employment. DONE AND ENTERED this 8th day of March, 2021, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 8th day of March, 2021. COPIES FURNISHED: V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Jhonny Felix 5938 Ithaca Circle West Lake Worth, Florida 33463 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 878226, based upon the allegations in the Amended Administrative Complaint, Case No. 034-0140-Q, before the State of Florida, Education Practices Commission?
Findings Of Fact Respondent holds Florida Educator's Certificate No. 878226, covering the areas of chemistry, which is valid through June 30, 2004.2/ At all times pertinent hereto, the Respondent was employed as a science teacher at Gulf Coast High School Charter, in the Escambia County School District. STIPULATED FACTS Gulf Coast High School (GCHS) conducted a field trip to Pensacola Beach on May 10, 2002. No certified lifeguards were employed by GCHS for the May 10, 2002 beach field trip. GCHS conducted a similar field trip to Pensacola Beach in April 2001. For the April 2001 (trip), GCHS claims it employed two certified lifeguards. Fifty-eight students attended the May 10, 2002 beach field trip. The following eight GCHS employees accompanied the students to the beach: Russell D. Bourne, Transportation Supervisor --"Mr. Bo" Deanna Jones, Science Teacher Felicia Churchwell, English Teacher Anthony Bassett, Social Studies Teacher Alphonso Lewis, Behavioral Tech Minnie Robertson, Secretary/Attendance Clerk Ray Steven White, Student Services Specialist Melvin Burnett, Behavioral Tech Mr. Burnett left the field trip around lunch time, before the drowning took place. For each student attending the beach field trip, parents signed a field trip authorization form and attached a $5.00 payment for expenses. The beach field trip form specifically stated the student would be going to the beach and that a "certified lifeguard would be on duty." Although the field trip was planned by Assistant Principal Kevin Jones, the person in charge at the beach was Felicia Churchwell, a second-year English teacher. Ms. Deanna Jones took no part in planning the field trip. Both Assistant Principal Kevin Jones and Trip Supervisor Churchwell attended last year's beach trip (the 2001 trip) and knew lifeguards were on duty at that time. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled students to ascertain whether students could or could not swim. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled employees to ascertain whether the employees attending the field trip could or could not swim. Prior to leaving the school on May 10, 2002, the fifty-eight students were shown the safety video: A Safe Visit to the Beach. The video described the meaning of the beach flag system and provided information on how to manage dangerous surf conditions such as rip tides. Aside from a viewing of the video, Assistant Principal Kevin Jones' only other precautionary instruction to the students was that they were not to go into the water deeper than their navels. The students boarded two GCHS buses and were taken to the gulf side of the beach near the entrance to Fort Pickens. They arrived at the beach at approximately 10:30 a.m. Ms. Deanna Jones immediately advised Ms. Churchwell and other staff that no lifeguards were on duty and yellow flags were flying. Ms. Churchwell stated that she was not concerned that a lifeguard was not present. Students remained in the water for nearly an hour and a half before being called out of the water for a lunch break. All students left the water for lunch. The students were permitted to return to the water following the lunch break at approximately 12:45 p.m. Two staff members, Ms. Deanna Jones and Mr. Alphonso Lewis, stayed at the pavilion. Mr. Lewis was cleaning up from lunch and Ms. Jones was watching the students who were still eating. The remaining staff members returned to the beach to monitor the students who were either sitting or standing near the water's edge observing the students. Some students began to go out into deeper water, venturing beyond the sandbar approximately ten to fifteen yards from shore. At that time Social Science teacher Anthony Bassett began to yell to the students to get out of the water. Students Isaiah Baker, Colan White, Johnny Smith, Ryan Dumas and the decedent, Earl Beasley, were together in the water. No staff person observed the decedent in any danger. No staff person observed the decedent drown. Staff at the beach determined the decedent was missing only after students leaving the water indicated the decedent was missing. Initially GCHS staff believed the decedent could have been in the rest room. When the decedent could not be located, Anthony Bassett called 911. No GCHS personnel, except Alphonso Lewis, entered the water to search for the decedent. Mr. Lewis traveled to the sand bar, but was discouraged from going further by another GCHS employee due to the dangerous surf. Mr. White searched the water visually through the zoom feature on his camera. Rescue personnel arrived with jet skis about ten minutes after the 911 call was made. The decedent's body was found submerged ten to fifteen minutes later approximately fifty yards off shore. Rescue personnel performed CPR at the scene and Life Flight took the decedent to Gulf Breeze Hospital. Earl Beasley was pronounced dead thirty minutes later. ADDITIONAL FACTS On February 26, 2002, Respondent commenced her employment at GCHS. During employment at GCHS Respondent had not been told about school policies in relation to serving as a chaperone on a field trip for the student body. The persons responsible for planning the May 10, 2002 outing for the school were Kevin Jones, the assistant principal, and Felicia Churchwell, an English teacher. Mr. Jones and Ms. Churchwell did not delegate to Respondent any planning or organizational responsibilities associated with the field trip. In that connection, Respondent was not called upon to determine whether the students could swim. Respondent was not called upon to arrange for a lifeguard to be in attendance at the outing. Assistant Principal Jones did not attend the field trip. Ms. Churchwell was placed in charge of the field trip and served as supervisor at the beach. Respondent had no supervisory authority or control over other persons who served as chaperones on the field trip. Respondent was required by Assistant Principal Jones to attend the field trip as a chaperone. Assistant Principal Jones had informed Respondent of the duty to act as chaperone a couple of days before the field trip. It was the intent of Assistant Principal Jones that all students who would participate in the field trip watch the video on safety. After the students watched the video Mr. Jones told the students that they should not go deeper in the water than their belly buttons. Earl Beasley did not view the safety video. But he was allowed to go on the field trip. There is no indication in the record that Respondent participated in the decision to allow Mr. Beasley to participate in the outing without a knowledge of the instruction presented in the safety video. When the party arrived at the beach, there was a lifeguard stand but no lifeguard. The lifeguard stand had a sign displayed indicating that the lifeguard was not on duty. A yellow flag was displayed reminding swimmers to proceed with caution. When Respondent told other chaperones, to include Ms. Churchwell about the absence of the lifeguard, those other persons responded that they knew that the lifeguard was not on duty. Before lunch Respondent spent time down by the water watching students in her role as chaperone. Some students were in the water, others were not. Some students were observed violating the assistant principal's instruction not to go deeper than their belly buttons. Respondent called out to those students who exceeded the depth allowed. The students came closer to the shore where they could understand what was being said. Respondent then told them that Mr. Jones had said that they could not go above their belly buttons. Beyond the time at which she had offered this reminder to stay within the bounds for depth, Ms. Churchwell allowed the students to return to the deeper water. Later in the morning Respondent reminded the students another time to not go so deep in the water. By that point the water was becoming more choppy. A short time later the students were called for lunch. The students went to a location behind the sand dunes away from the beach, where a picnic area was located to have their lunch. The students were required to remain out of the water for a period of time beyond the point in time when they ate their lunch. From the picnic area, one could not see the immediate shoreline because of the dune height. Respondent remained in the picnic area after lunch to watch some students who had remained in that area. Respondent became aware that Earl Beasley was missing when people began to approach the picnic area by coming across the boardwalk that topped the dune. These persons were trying to find the missing student in the restroom areas adjacent to the picnic area. Respondent was told words to the effect that Earl Beasley was in the water and in distress. Having been told about Mr. Beasley's circumstances, Respondent returned to the beach. She observed that the water was even rougher than it had been before. Respondent was prepared to assist in the attempt to rescue Mr. Beasley. She decided against this course given the water conditions. The efforts of others to save Mr. Beasley were not successful.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered dismissing Counts 1 through 3 of the Administrative Complaint, upon a finding that Respondent has not violated Section 1012.795(1)(f) and (i), Florida Statutes (2002), nor has she violated Florida Administrative Code Rule 6B-1.006(3)(a).3/ DONE AND ENTERED this 13th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 April, 2005.
Findings Of Fact On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home. At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13. Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet. Because of the topography and insects this area is not popular for picnicking. Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye. While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some 500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating. Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply. When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33). The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician. Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing. After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith. Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith. The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign. Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974, and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred. A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so. The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police. Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars. Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report. Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced. Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct. Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
Findings Of Fact Mr. Schrier holds a Florida teaching certificate, No. 586600, which is valid through June 30, 1992, and covers the areas of drivers education, social studies, history, and physical education. Mr. Schrier was employed as a teacher at Palm Beach Lakes Community High School beginning in 1988 by the School Board of Palm Beach County. On September 29, 1988, a newly registered student was assigned to a world history class taught by Mr. Schrier and was given a note to take to Mr. Schrier explaining that she would be an additional student in the class. Mr. Schrier refused to admit the black female student to his class saying that his class was already too large. The student came back to the school office and she was sent back with another note instructing Mr. Schrier to admit the student, but he once again refused. On the third occasion, the student was accompanied to Mr. Schrier's class by the Vice Principal, Glen Heyward, and once again, Mr. Schrier, in the presence of the student, refused to admit the student to the class on the grounds that he already had too many students and that there were too many black students already in the class. All the students heard these comments, which were wholly inappropriate. Eventually the student was assigned to another class, which was already larger than Mr. Schrier's class. His comments had made it untenable for that student to be assigned to Mr. Schrier's class. As the result of the incident, Mr. Schrier received a written reprimand from the Principal of Palm Beach Lakes Community High School on October 10, 1988. Mr. Schrier had a history of difficulty in controlling the conduct of students in his class. It was common for students to be eating, talking or engaged in other acts of misbehavior while he was attempting to teach. On about October 31, 1990, during Mr. Schrier's second period world history class, a number of students were failing to pay attention or otherwise misbehaving and, in general, the class was loud and unruly. In the course of attempting to restore order, Mr. Schrier said to this integrated class that the black students should act like white students. All students had been unruly and it was simply not true that the black students were the only students misbehaving. This comment upset both the black students and the white students and they began to wad paper and throw it at him and to yell at him, which caused him to panic and to push a buzzer to summon the deans from the school office. The deans attempted to restore order and Mr. Schrier was unable to complete that class. Parents of both black and white students learned of the incident and objected to their children being taught by Mr. Schrier on account of his inappropriate racial remark. Black students in his class were both embarrassed and angry about his disparaging comment. As a result of disciplinary action taken against him by the School Board of Palm Beach County, Mr. Schrier's actions became generally known in the community through a story which appeared in the Palm Beach Post. It is inappropriate for a teacher to tell black students to act like white students. Discipline is imposed on the basis of misconduct, not on the basis of race. Mr. Schrier's statement embarrassed and disparaged the students and created a poor learning environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Richard Schrier, be found guilty of violating Section 231.28(1)(h), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B- 1.006(3)(e), Florida Administrative Code. It is further recommended that the Education Practices Commission issue a letter of reprimand to the Respondent, impose an administrative fine of $500 and that the Respondent shall be placed on two years probation with the Education Practices Commission. The terms of the probation shall include the requirement that the Respondent: Shall immediately contact the Education Practices Commission upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor. Shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent. Shall make arrangements for his immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance. Shall satisfactorily perform his assigned duties in a competent professional manner. Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006. During the period of probation shall successfully complete two college courses or the equivalent in- service training courses in the areas of cultural awareness and classroom management, with progress and completion to be monitored by the Education Practices Commission. RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of June 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1992. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Mr. Richard E. Schrier Apartment 116 500 North Congress Avenue West Palm Beach, Florida 33401 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
