The Issue The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.
Findings Of Fact The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter, Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990. MICHAEL M. PARRISH 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 18th day of July, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. James W. Hamilton 505 N.W. 177th Street Apartment 120 Miami, Florida 33169 Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2018.
Findings Of Fact The Respondent, Glensa Poole, is a teacher licensed to teach in the State of Florida and was employed by the Petitioner, School Board of Dade County, as a teacher at Little River Elementary School during all times pertinent hereto, to wit: 1977 through 1980. The Petitioner is an agency of the government of Metropolitan Dade County charged with conducting public education, including operation and maintenance of public school facilities as well as the hiring, regulating and supervision of the conduct, practices and activities of teachers in those facilities, including the Respondent. The Respondent, in four (4) cases in 1977 and in five (5) cases in 1980, committed offenses involving the negotiating of worthless bank checks or drafts in return for goods, services or items of value for which he was convicted in the Circuit Court for the 11th Judicial Circuit. These convictions all were for third degree felonies and sentences varying from three (3) to five (5) years ware imposed for all nine (9) convictions. The sentences were suspended and probationary terms imposed in their stead. The record does not reflect whether the Respondent remains under his probationary term or not as of the date of the hearing. The criminal charges of for which the Respondent was convicted involve knowingly making, uttering and issuing worthless bank checks and drafts in return for goods, services or other items of value and the statute under which he was convicted for those felony charges, Section 832.05, Florida Statutes, necessarily involved, for a conviction to be entered, a finding that the Respondent knowingly issued the worthless checks with the intent to defraud others of goods, services or items of value. The Respondent, Glensa Poole, is the same Glensa Poole or Glensa John Poole who was found guilty of the nine (9) felony charges involved herein.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and the arguments of counsel, it is, therefore RECOMMENDED: That Glensa John Poole should be dismissed from his employment with the Dade County School Board and that he should forfeit all back pay. DONE and ENTERED this 17th day of November, 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 17th day of November, 1982. COPIES FURNISHED: Jesse J. McCrary, Esquire 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 William DuFresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit. Ms. Alvarez held a conference with Respondent. Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement." Ms. Yassin violated that clear and unequivocal directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/ Respondent's misconduct, as described herein, has impaired her effectiveness in the school system. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, 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 sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S 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 17th day of May, 2012.
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S 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 22nd day of December, 2006.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S 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 23rd day of December, 2014.
The Issue The issues presented for determination are the following: Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.
Findings Of Fact At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program. Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990. l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990. JANE C. HAYMAN 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 13th day of June, 1990.
