The Issue The issues are whether Petitioner has just cause, within the meaning of Subsection 1012.33(1)(a), Florida Statutes (2007),1 to terminate Respondent’s professional service contract as an instructional employee, and, if so, whether termination of the contract is reasonable under the facts and circumstances of this case.
Findings Of Fact Petitioner employed Respondent as a classroom teacher from some time in 1998 until September 8, 2009, pursuant to a professional service contract. Petitioner relieved Respondent from the duties of her employment without pay on September 8, 2009. On September 21, 2009, Petitioner filed an Administrative Complaint against Respondent. Most of the material facts in the Administrative Complaint are undisputed. On December 12, 1999, Respondent was arrested for cocaine possession, a third-degree felony, and narcotic equipment possession, a first-degree misdemeanor. Respondent successfully completed a pretrial diversion program, and the charges were nolle prossed and expunged. Respondent did not report the criminal matter to Petitioner. The failure to report the criminal matter violated the self-reporting requirements in Management Directive A-10, Guidelines on Self-Reporting of Arrest and Convictions by Employees (the self-reporting requirements). On July 10, 2000, Respondent was arrested for driving under the influence (DUI), which was a first conviction. Respondent pled nolo contendere to a reduced charge of reckless driving and entered and successfully completed a pretrial diversion program. Respondent did not report the DUI matter to Petitioner. The failure to report the DUI matter violated applicable self- reporting requirements. On June 18, 2002, Respondent was arrested on a misdemeanor battery charge. The alleged victim dropped the charge, but Respondent did not report the incident to Petitioner in violation of the applicable self-reporting requirements. On July 6, 2006, Respondent violated Petitioner's Drug Free Workplace Policy by reporting to work at Rolling Hills Elementary School under the influence of alcohol. On July 9, 2006, Respondent entered into an agreement with Petitioner identified in the record as a Last Chance Agreement. The Last Chance Agreement was in effect for the 2006- 2007 and 2007-2008 school years. The Last Chance Agreement provides, in relevant part, that if justifiable grounds of discipline, rising to the level of a written reprimand or dismissal, occur during the school year, Respondent shall forfeit her right to be employed by Petitioner, and the Last Chance Agreement shall constitute a voluntary resignation from employment. The 2007-2008 school year ended on June 6, 2008. On May 30, 2008, Respondent failed to disclose on the renewal application for her Florida Educator's Certificate the expunged criminal record, pretrial diversion program, and plea of nolo contendere previously discussed. Respondent checked "no" to the following question: Have you ever had any record sealed or expunged in which you were convicted, found guilty, had adjudication withheld, entered a pretrial diversion program or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is not a minor traffic violation)? On March 20, 2009, the Education Practices Commission imposed several penalties against Respondent's teaching certificate for the violations that occurred during the 2007- 2008 school year. The Commission issued a written reprimand, imposed administrative fines in undisclosed amounts, and placed Respondent on two years’ probation. The disputed issue is whether Respondent's failure to disclose her criminal history on the renewal application for her Florida Educator's Certificate was intentional. Respondent claims the failure was not intentional, but was induced by post- traumatic stress syndrome (PTSS) caused by two statutory rapes that occurred when Respondent was 13 and 15 years old. When Respondent was 13 years old, a man who was approximately 33 years old "took her virginity." Respondent had an abortion, experienced a great deal of shame and guilt, and began self-medicating with alcohol and drugs. When Respondent was 15 years old, one of Respondent's high school teachers molested her. Respondent again experienced guilt and shame, did not disclose the incident, and continued using alcohol and drugs. Respondent presented expert testimony concerning the effects of PTSS. The expert testimony concludes that PTSS could have caused Respondent to drink excessively and fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. However, the expert testimony fell short of concluding that PTSS in fact induced Respondent to fail to disclose the criminal history on her application. Respondent's own testimony is that she had five or six glasses of wine the night she completed the application. Respondent completed the application without giving it much thought. On balance, a preponderance of the evidence does not support a finding that PTSS caused Respondent to fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. Several mitigating facts support a penalty less than termination of the professional service contract. The non- disclosure of facts was a harmless error to Petitioner. Petitioner had actual prior knowledge of all of the facts that Petitioner complains Respondent omitted from the application. The state licensing authority has knowledge of the non-disclosed facts. Respondent has already been disciplined for non-disclosure to the state licensing authority. When the Last Chance Agreement was entered into in 2006, Respondent was incorrectly diagnosed and treated for bipolar disorder. The treatment for bipolar disorder was ineffective during the term of the Last Chance Agreement. Respondent has been alcohol-free since September 2008, when she placed herself in a residential alcohol treatment program in Clearwater, Florida. Beginning in the early part of 2010, Respondent has been correctly diagnosed and treated for PTSS by Joseph L. Trim, Ed.D, a licensed mental health counselor and addiction specialist. That diagnosis and treatment appears to be effective for Respondent. Based on the testimony of the school principal who testified for Respondent, Respondent is an experienced and competent teacher who has not lost her effectiveness in the classroom. For each school year from 1998-1999 through 2004- 2005, Petitioner evaluated Respondent as effective in the classroom. Respondent has already received a reasonable penalty for violating the Last Chance Agreement, when Respondent was improperly diagnosed and treated for bipolar disorder. Petitioner has suspended Respondent from her employment without pay from September 8, 2009, to the present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order reinstating Respondent's employment with her current principal, requiring Respondent to continue her current therapy with Dr. Trim, requiring Respondent to submit to random drug screening, and extending the term of the Last Chance Agreement for another two years. DONE AND ENTERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2010.
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
The Issue Whether the Petitioner demonstrated just cause for the dismissal of the Respondent from employment as a teacher.
Findings Of Fact In a Joint Pre-Hearing Stipulation, the parties agreed to the following facts: At all times material hereto, Respondent, Marlon J. Pearce was employed by Petitioner as a school teacher within the school district of Miami-Dade County, Florida, assigned to Lawton Chiles Middle School. Respondent was employed by Petitioner pursuant to the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, and subject to the rules and regulations of the State Board of Education and of the School Board in accordance with § 1012.33(6)(a), Fla. Stat. (2002). At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to § 4(b) of Article IX of the Constitution of the State of Florida and § 1001.32(2), Fla. Stat. (2002). On November 5, 2000, a conference-for- record (CFR) was held with the Respondent by the principal at North Glade Elementary School. On March 7, 2001, another CFR was held with the Respondent by the principal at North Glade Elementary School. On March 15, 2002, a CFR was held with the Respondent at the School Board's Office of Professional Standards. On May 28, 2002, a meeting was held with the Respondent at the School Board's Office of Professional Standards. At its regularly scheduled meeting of June 19, 2002, the School Board took action to suspend and initiate dismissal proceedings against the Respondent. John Schoeck is currently and for the last two years has been the Principal of North Hialeah Elementary School. For the preceding five years, he was the Principal at North Glade Elementary School. While at North Glade, Mr. Schoeck hired the Respondent, Mr. Pearce, to teach physical education. (Tr. 13) After a November 5, 2000, conference-for-record (CFR) with Mr. Pearce, Mr. Schoeck issued certain directives to Mr. Pearce. Among those directives were the requirement for professional conduct with parents, students and staff, and prohibitions on using profanity, on making verbal or physical threats to parents, students or staff members, and on having verbal or physical confrontations with coworkers. (Tr. 18, 208- 209, P-6) Mr. Schoeck also referred Mr. Pearce to the Employee Assistance Program based on interpersonal behavior observed on the job. (Tr. 9, P-5) An allegation that the Respondent hit a student in the back with his fist was unsubstantiated, in March 2001. The Respondent testified that the student was loud, easily influenced and had an attitude. (Tr. 185) Another student at North Glade Elementary School became involved in a rock-throwing incident with the Respondent. The Respondent described the student as defiant. He testified that after the student threw a rock and hit him, he grabbed her arm to make eye contact, but after she "started going wild and shaking," he let her go and she fell to the ground. There was testimony that her shirt was torn when she reached the principal's office, but the Respondent denied that it was ripped when she left him. (Tr. 186-188, 212-213) On March 7, 2001, Mr. Schoeck held another CFR with Mr. Pearce, as a result of certain allegations by a student and his mother that Mr. Pearce called the student a "punk." Mr. Schoeck found Mr. Pearce insubordinate and reiterated the directives issued after the November conference. (Tr. 24-25, 209-210, 215-216, P-9) The Miami-Dade Schools Police Department ("the school's police") investigated several students' complaints alleging that Respondent had subjected them to corporal punishment. The police found the complaints to be unsubstantiated. Each time there was an incident, the Respondent was reminded of the School Board's policy prohibiting corporal punishment. (Tr. 32-33) Late in the 2000-2001 school year, the Respondent was reassigned to the region office and, subsequently, for the 2001- 2002 school year to Lawton Chiles Middle School (Tr. 33 and Joint Pre-Hearing Stipulation) On November 7, 2001, a charge of verbal abuse, for calling a student "stupid," was substantiated against the Respondent. (Tr. 219, P-17) The Respondent testified that what he said was "stop acting stupid" because the student was loud and saying she knew why he had been fired from his other job and was quoting the Bible. (Tr. 197-198) He also said that, in the heat of the moment, he also called her stupid. (Tr. 200) On November 8, 2001, the Respondent violated the School Board policy against "unseemly conduct, or the use of abusive and/or profane language in the workplace," by using the word "nigga." (Tr. 60-67 and P-16) The Respondent testified that the racial slur was made "under his breath" and not intended to be heard by students. He testified that what he said was "you're going to drive a nigga crazy," and that the comment was directed to himself, not the student. (Tr. 195) The Respondent testified that he told a student "If I was your dad, I would ring your neck," because the student was disruptive, defiant and not following directions. (Tr. 195-196, 218-219) In December 2001, a student was playing with a toilet valve and water was squirting out on the floor in the boys' locker room. After the student left the stall and walked over towards him, the Respondent grabbed him by the neck and shoved him. After an investigation by the school's police, the charge was found to be substantiated. (Tr. 69-88, 113-117 and P-18) The Respondent testified that he grabbed the student's shoulder but did not push him. (Tr. 201-202) Although the student had stopped spraying water at the time he confronted him, the Respondent considered his intervention appropriate because the wet floor created a safety concern. (Tr. 205, 214-215, 217-218) At the same time, other students began slamming locker doors in the locker room. The Respondent called the students involved "a bunch of assholes," and said "If you do this one more time, I could lose my job for hurting you." (Tr. 69-88, 113-117 and P-18) About the same time, the Assistant Principal at Lawton Chiles Middle School, Alberto Iber, received a complaint from the parents of another student. While he was playing with an injured student's aluminum walker, the Respondent grabbed him to try to retrieve the walker and pushed him to the ground. He also said to the student "fuck you." Charges of corporal punishment and the use of profanity were substantiated. (Tr. 93-112 and P-19) The Respondent admitted that he pulled the student down after saying "This is going to be the final time I ask you to sit down." (Tr. 204) He said he used the "f" word under his voice. (Tr. 205) When the Respondent was first assigned to Lawton Chiles Middle School, the Principal, Karen Robinson met with him to discuss the previous incidents at North Glade Elementary School and to discuss expectations that he would abide by the School Board's rules. Each time there was an incident involving the Respondent, Ms. Robinson called the District's Professional Standards Office which referred the matters to the school's police to conduct the personnel investigations. (Tr. 119-133, 219-220) After the fourth personnel investigation at Lawton Chiles Middle School, Ms. Robinson contacted the personnel director for the region. She was concerned that the incidents involving the Respondent were escalating from inappropriate verbal to more serious physical interactions with students. As a result, she recommended that Respondent's employment be terminated. (Tr. 135-136 and P-21) Barbara Moss, the District Director in the School Board's Office of Professional Standards, agreed with Ms. Robinson's and the region personnel director's recommendations to terminate the Respondent's employment. (Tr. 164-165, P-22 and 23) Ms. Moss, in turn, recommended that the School Board terminate Respondent's employment. She met with Respondent to notify him of the proposed action. (Tr. 165-166) The Superintendent of Schools also recommended that the School Board take action to terminate Respondent's employment and notified the Respondent of that recommendation. (P-24 and 25) The Superintendent also notified the Respondent when the School Board, at its meeting on June 19, 2002, took action to suspend and initiate dismissal proceedings against him for misconduct in office, gross insubordination, willful neglect of duty, and violation of School Board Rules 6Gx13-4.108, on Violence in the Workplace; 6Gx13-4A-1.21, on Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment - Prohibited. Notice of the availability of an administrative hearing to contest the action was also included. (P-24 through 26)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining Respondent's suspension without pay on June 19, 2002, terminating Respondent's employment, and denying the Respondent back pay. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 2nd day of May, 2003. COPIES FURNISHED: Merritt R. Stierhelm, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 1244 Turlington Building Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade - Law Department 2200 Biscayne Boulevard, 5th Floor Miami, Florida 33137
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
The Issue Whether Petitioner established "just cause" to terminate Respondent from her teaching job.
Findings Of Fact Ms. Harter is a special education teacher in the School District. She is a long-time Polk County, Florida, resident and has worked for the School District since 1985. The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. On December 10, 2010, Ms. Harter entered a guilty plea for leaving the scene of an accident, which is a third-degree felony, and resisting or obstructing an officer without violence, which is a first-degree misdemeanor. The circuit court withheld adjudication and sentenced Ms. Harter to 36 months’ probation on the felony charge, a short period of incarceration in the county jail, community service, fines, and restitution. As of the hearing date, Ms. Harter had successfully completed her community service hours and was successfully completing the remainder of her probation. Polk County School Board Policy 6Gx53-3.001 (School Board Policy 3.001) sets out the Employment Procedures followed by the School Board. In pertinent part, School Board Policy 3.001(V)(C)(4)(a), provides that: "criminal offenses listed below will render applicants and employees ineligible for employment with Polk County Public Schools. WILL NOT HIRE OR EMPLOY -- Felony convictions including, but not limited to the following: . . ." The School Board Policy then lists 49 enumerated crimes that specifically make a person ineligible for employment. School Board Policy 3.001(V)(C)(4)(d)4, also provides that a person may be considered for employment with the School District on a "case-by-case basis" when a person is "on probation [for] (Crimes not listed above)." Mr. Farinas, the School District director of employee relations, credibly testified that, it is the School Board's practice to automatically terminate employees who plead guilty to a felony charge, no exception. The School Board does not employ anyone who has a felony conviction. Further, the School Board, in considering whether or not to grant a "case-by-case" analysis for employing a person who has been convicted of an offense not listed in the School Board Policy, has limited its consideration to misdemeanors. The record, however, shows that the School Board has not been presented the question of whether or not to consider a person for continued employment, who has a felony conviction for a crime not listed in the School Board Policy and is serving a probationary sentence. Ms. Harter has worked for the School District in many different capacities since 1985. It was undisputed that Ms. Harter was an exemplary special education teacher, who is respected by her peers and students. Ms. Harter has a long, successful record of working with emotionally-handicapped students. As Mr. Darby, an assistant principal who supervised Ms. Harter stated, "without Julie's influence, a lot of those students would have never made it through high school." It was undisputed that Ms. Harter is a "very dedicated and responsible teacher." For example, Ms. Whiteley credibly testified that Ms. Harter "knew all of her students, knew everything about her students, and worked very hard to get them to be successful, and also job placements." The record clearly shows that Ms. Harter is a dedicated special education teacher who loved her students and did an excellent job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the School Board established "just cause" to terminate Ms. Harter and that Ms. Harter's employment be terminated. DONE AND ENTERED this 14th day of July, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2011.
Findings Of Fact Respondent is Lawrence J. Ferrara. He holds Florida teaching certificate number 150262, issued by the State of Florida, Department of Education. He is certified to teach social studies, grades 7-12. He has not been assigned to teach outside of this subject area at any time relevant to this proceeding. While Respondent's performance for the school years 1981-82 through 1985-86 is at issue in this proceeding, a review of his annual evaluations for the years 1966 to 1986 indicate a continuing problem in the control of students in the classroom and teaching effectiveness. Respondent was assigned to teach at John I. Leonard High School beginning with the 1970-71 school year and remained in this assignment until his suspension on February 19, 1986. John I. Leonard High School consisted of a 40 acre campus, 145 teachers, and about 2,200 students during the 1985-86 school year. Luke Thornton has served as principal of John I. Leonard High School since October 22, 1981. In dealing with employees, he follows guidelines set out in the collective bargaining agreement with the Classroom Teacher's Association. He is also guided by district school board policy, administrator's directives and the John I. Leonard High School Teacher and Student Handbooks. Thornton has several assistant principals, including "deans", who are authorized to counsel and reprimand employees. Deans are, however, primarily responsible for discipline of students and working with parents. Guidance counselors at the high school are also known as Senior High Counselors. They provide individual and group counseling to students, interpret test results and assist students in career planning. Guidance counselors may counsel other staff members when need arises. While designated department chairpersons within the school have authority to counsel with teachers in their respective departments, the chairpersons do not have the authority to reprimand or evaluate teachers. The chairperson for the social studies department at John I. Leonard High School is Catherine Thornton (no relation to the principal, Luke Thornton). As the chairperson, Ms. Thornton reviews lesson plans of all 16 teachers in the department to assure that objectives of the unified curriculum program are covered by the teacher. This action is mandated by the school board. Teachers are required to prepare lesson plans one week in advance. They must also prepare emergency lesson plans which can be used by a substitute teacher in the event the teacher is unexpectedly absent. Course assignments within the social studies department are recommended by the chairperson and reviewed by the assistant principal assigned to that task. The entire schedule is eventually approved by the principal. Textbooks are issued to each teacher within the social studies department by the chairperson. The teacher returns the books at the end of the semester or school year. If books are not returned, the teacher must collect the cost of the missing textbook from the student responsible for it. The 1981-82 School Year During the 1981-82 school year, Respondent was assigned three 9th grade American government classes and two 11th grade history classes. Respondent's hours of work, to accommodate this teaching schedule, were normally 9:45 a.m. until 5:15 p.m. In previous years, Respondent's assignment had been all 11th grade classes and his hours were normally 6:45 a.m. through 2:15 p.m. Shortly after the beginning of the school year, Luke Thornton became principal. Respondent sought to have his assignment changed by Thornton. The principal denied the request and told Respondent the subject would be revisited at the semester's end. At the end of the semester, Thornton again denied Respondent's request for change in course assignment due to disruption that would be caused in the master schedule, concerns about Respondent's performance, and what Thornton considered to be an excessive amount of failing grades received by students in Respondent's classes during the first nine weeks of the previous semester. During the fall semester, Respondent was absent on several occasions. After the refusal of his request at the end of the semester for a change of his teaching assignment, Respondent took a leave of absence for the entire second semester. During Respondent's absences in the 1981-82 school year, Mary Sandt substituted as the teacher of his classes. Lesson plans were available during the first semester. However, no lesson plans were provided for the second semester. Respondent did not provide any assistance to the substitute teacher in this regard, although testimony of Sandt establishes that other teachers normally provided such assistance. More than any other teacher during the 1981-82 school year, Respondent referred students from his classes to the deans for disciplinary reasons. The referrals were for minor infractions such as talking out of turn, sharpening pencils, and squeaking chairs. Sometimes he referred groups of students for discipline. Earl Higgs, a dean during this school year, discussed ways of handling minor infractions with Respondent. Higgs advised Respondent to review the John I. Leonard Handbook discipline provisions. Respondent was not responsive to these recommendations. Higgs was required to review class rules with Respondent's students on at least three occasions as a result of being called to the class by the Respondent because the class was out of control. Initially, Mary Sandt had some disciplinary problems with Respondent's classes during her substitute teaching for him, but the deans provided her with assistance in gaining control. Thereafter, she was able to control the students with only minor problems. Before referring students, Ms. Sandt attempted to resolve discipline problems in the class. If unsuccessful, she documented her action on a discipline referral slip. Respondent did not follow this procedure. Luke Thornton's first evaluation of Respondent following the 1981-82 school year noted Respondent had a considerable amount of discipline problems with 9th and 11th grade students. In addition, it was noted that students have "difficulty understanding his approach to teaching." Respondent's ineffective working relationship with associates and his failure to attend open house and graduation functions at the school were also noted. The evaluation reflected no areas of strength beyond the observation that Respondent "uses various methods and materials." The 1982-83 School Year The chairperson of the social studies department recommended that Respondent be assigned all 9th grade American Government classes for the 1982-83 school year. The recommendation was approved by Assistant principal Shirley Jackson and by Luke Thornton, the principal. Respondent felt "absolutely demoralized, devastated and dehumanized" and worthless in the eyes of fellow teachers as a result of his assignment to teach 9th grade. The 1982-83 school year produced numerous complaints about Respondent's teaching. His teaching technique essentially consisted of giving students a text book reading assignment and have them answer review questions at the end of the chapter. Students completed these assignments in class time while Respondent read the newspaper or listened to the radio. Students cheated on many occasions in order to complete their work by passing answer sheets around the classroom while Respondent was present. Respondent sometimes gave lectures to his classes. Many times the lectures had nothing to do with the course content. Respondent discussed a lawsuit he had initiated against the school board without relating it to the lesson content. He repeatedly told his students they were immature, he hated them and he preferred to teach upperclassmen. Respondent would tell students to be quiet or find the answer in the book when they asked for assistance. Respondent called students names such as "jackass" and "jerk" in class. Students did not pay attention to Respondent because they found his classes boring. Respondent's general reputation among students was that he was not a good teacher; that he treated students in the same manner each year, and that he was "weird." Many of Respondent's students tried to transfer out of his class. Reasons given to Pat Konttinen a school guidance counselor, for requesting transfers included no motivation for students, inability to understand Respondent's lectures when he gave them, Respondent's failure to lecture on the subject matter, testing students on materials not covered in class, and that the class was boring. Ms. Konttinen discussed specific complaints of students with Respondent, but he did not change his teaching style. The testimony of students concerning the 1982-83 school year reveals that they have had no other teachers at the school who taught as poorly as Respondent. Respondent had the highest rate of textbook losses for the 1982-83 school year. During the first semester of the 1982-83 school year, Ms. Sandt again substituted for Respondent when he was absent. No lesson plans were available contrary to the requirement that such plans be provided. Respondent also failed to complete emergency lesson plans. Ms. Sandt wrote lesson plans and gave assignments when substituting because she had no idea when he would return. When Respondent did return, he threw assignments completed by the students in the trash because Sandt had not graded the work. Substitute teachers do not normally grade papers. The students felt the substitute teacher, Ms. Sandt, was a better teacher than Respondent. During Respondent's absences, Ms. Sandt experienced no discipline problems. Earl Higgs, in his capacity as dean, continued during the 1982-83 school year to receive numerous discipline referrals from Respondent. In each case, Higgs asked students for their side of the story and advised Respondent of actions taken on referrals. These referrals indicated that Respondent did not have proper control of his classes. Students were referred for minor disciplinary matters because Respondent did not want to handle problems on his own. Students who were referred for discipline by Respondent were either never previously referred by any other teacher, or, at most, referred one other time. Respondent continued to send groups of students to the dean. Sometimes the students would get out of control talking and laughing in class because "they could get away with it." On occasion, Respondent would shut the door to the classroom, close the windows and turn off the air conditioner as punishment for the class until the class was in control. On one particular occasion, Luke Thornton walked back to Respondent's room with four girls after they complained that Respondent would not open the room windows and the air conditioning was not working. On arrival at the room, Thornton found the room extremely hot. Respondent was wearing a sweater and the room windows were closed. The principal opened the windows to prevent students from passing out in the heat. Respondent improperly grabbed a student by the arm to discipline him during the 1982-83 school year. Bruises were left on the arm. After an investigation, Respondent was counseled concerning the incident. In his 1983 evaluation of Respondent, Luke Thornton noted that Respondent had knowledge and understanding of his subject matter, maintained an appropriate appearance, possessed appropriate educational qualifications and adhered to the defined duty day. The principal noted no other areas of strength. Numerous performance deficiencies were noted in a sheet attached to the 1983 evaluation form. Specific recommendations for improvement were cited. In regard to teaching technique, Respondent was informed he should vary methods of instruction. Consistency in discipline standards was noted as a way to improve classroom environment. Respondent was urged to strive to achieve rapport with peers and parents, as well as to timely submit lesson plans. Luke Thornton held several conferences with Respondent to discuss the deficiencies noted in the 1983 evaluation. Respondent was not receptive to suggestions. He complained of unfair treatment in course assignments and repeatedly discussed his lawsuit against school officials. Respondent continued to maintain he was better suited to teach 11th graders, although he was certified to teach 9th and 11th graders. The principal told Respondent to be responsible to his students regardless of other personally perceived problems. He also told Respondent that he should work to improve performance. While there is no significant technical difference in teaching either 9th or 11th grade, there is a difference in maturity levels of the students in each grade. Such a difference in maturity levels requires a difference in teaching style. Pat Martin, a guidance counselor, testified that ninth grade boys "get a little antsy" and have to be motivated by the teacher. This testimony was corroborated by Assistant Principal Earl Higgs who preferred to teach 9th graders but conceded they required more assistance and can be more difficult to handle. The 1983-84 School Year Respondent remained in the same teaching assignment during the 1983-84 school year. He did not request a transfer to another school, nor did he request a schedule change. Testimony of students of Respondent for 1983-84 school year was consistent with the testimony of his students from the 1982-83 school year. Respondent's teaching techniques did not vary from the previous year. Respondent's attitude remained unchanged in the 1983-84 school year as he continued to advise his students that they were immature and that he preferred to teach upperclassmen. Students requested transfers at an increased rate from Respondent's classes, indicating that Respondent was unresponsive and they did not know how they were doing in his class. Respondent was advised of student and parent complaints by guidance counselors Pat Konttinen and Melinda Wong. They observed no change in his behavior. Two written complaints were received by Ms. Wong concerning Respondent's behavior in the classroom. Respondent did not issue required progress reports to students at the proper time to advise them whether they were failing. When several students were failed by Respondent, they complained about this fact. Luke Thornton discussed this problem with Respondent. Respondent had the second highest rate of textbook losses for the social studies department. Students defaced a number of books due to Respondent's improper storage of the books. Respondent continued to ignore requests to make lesson plans available. As of February, 1984, Respondent had turned in three lesson plans for a 20 week time period. By June, 1984, Respondent had completed five lesson plans when he should have completed a total of 36 lesson plans. The lesson plans completed by Respondent were usually unsatisfactory. Respondent was on leave for approximately three weeks during the Spring semester of this school year. The substitute teacher was Robin Thomas. Respondent left no lesson plans, nor did he have emergency lesson plans available as required. Catherine Thornton, the department chairperson, provided Ms. Thomas with assistance. Thomas created lesson plans, gave assignments to students and corrected the results even though she was not required to do so. She had no problems with discipline in any of Respondent's five classes. She was 21 years old at the time. When Respondent returned to the class after his absence, the students did not want him back and told Respondent to go away. Respondent did not consider Thomas' graded assignments. Students were required by Respondent to repeat the work previously given by Thomas. Also, after returning to school, Respondent requested lesson plans from Ms. Thomas contrary to normal procedure. On several occasions, David Culp, a dean at the school, was advised by Respondent that he, Respondent, refused to teach the class. Students also told Culp that Respondent would stop teaching. Culp received numerous complaints from parents about the lack of teaching their children received from Respondent. Respondent refused to grade papers on one occasion. He also refused to sign a withdrawal slip for a student even though requested to do so by Culp's office. Both Culp and Earl Higgs received frequent discipline referrals from Respondent. Higgs, serving his last semester as dean during the first semester of the 1983-84 school year, testified that Respondent's referrals did not diminish while he was a dean. Culp became a dean beginning with the 1983-84 school year. Culp's testimony was consistent with that of Higgs concerning the type of referrals Respondent sent to him. Culp was also called to Respondent's room to assist Respondent in regaining control of the class. According to Culp, he routinely visited Respondent's class because of his personal observation that Respondent did not have adequate control of students and the atmosphere in the classroom was so hostile that learning could not take place. Culp discussed Respondent's large number of discipline referrals with Respondent. Culp, like Higgs, had many more discipline referrals from Respondent than other faculty members. Culp estimated 25 per cent of all referrals received by him were from Respondent with the remaining 75 per cent split among the remaining 139 faculty members. Students continued to complain that Respondent did not open windows or turn on the air conditioner when requested. A parent's complaint regarding Respondent's discipline techniques was filed with Luke Thornton. Respondent began to come to work late and leave early. This action was noted and Respondent was warned to adhere to the defined duty day. On April 25, 1984, Luke Thornton placed Respondent on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure as a result of Respondent's continuing problems. The purpose of the program is to provide assistance to teachers with performance problems. Respondent was given a detailed written summary of all deficiencies noted in his performance and given until October 16, 1984, to correct those deficiencies. Among the deficiencies noted were failure to use acceptable teaching techniques, lack of a positive classroom environment through use of acceptable control, lack of professional and effective working relationships with peers and failure to submit proper records. Respondent believed the NEAT procedure was a "device used to get rid of tenured teachers, especially those who made waves." He characterized the "T" in NEAT for "termination," not "time". Respondent's evaluation for the 1983-84 school year noted that the same deficiencies pointed out previously still existed. The evaluation noted that Respondent possessed appropriate educational qualifications and used good oral and written language. Among other subjects, Respondent was criticized for having an inadequate variety of methods and materials, inadequate planning, using inappropriate language with students, discussion of inappropriate topics with students during class time, unwillingness or inability to work effectively with parents, unwillingness or inability to provide a positive learning environment, failure to submit proper records, failure to comply with defined duty days, and failure to have an effective relationship with colleagues. He was admonished to avoid improper language with students, to maintain appropriate standards of discipline and to promote a positive relationship between students and teacher. The 1984-85 School Year At the beginning of the 1984-85 school year, Luke Thornton asked Respondent what assistance he could offer Respondent that had not yet been provided. Respondents refused the principal's offer of assistance. Based on testimony of students who had him as a teacher for the 1984- 85 school year, Respondent's teaching methods did not vary. Students again confirmed that Respondent told them he hated 9th graders and felt they were immature. Students also confirmed that when given worksheet assignments, some students would cheat while Respondent read the newspaper, listened to the radio or looked out the window. Respondent continued to refer to his lawsuit against the school board and school officials during class time. He also discussed with his students the qualifications of another teacher in the social studies department. Respondent's general reputation among his students was that he was boring and no one liked or respected him. Instead of paying attention to Respondent, some students would sleep or "horse around." Students indicated they did not learn anything or learned very little because Respondent did not teach. Also, these students had not encountered any other teachers at the school with teaching problems like those of Respondent. Complaints by students regarding Respondent's refusal to open windows and doors for air continued. On one occasion, Respondent told the class the air conditioner was not working, but refused to open windows because the students were too loud. Respondent refused to give credit for assignments given by the substitute teacher. He refused to issue progress reports. He refused to change a student grade after being directed to do so by Luke Thornton, although such change was appropriate. Guidance counselors continued to receive requests from students seeking transfers from Respondent's class. A new guidance counselor for the 1984-85 school year, Pat Martin, received reports that Respondent constantly talked about his lawsuit during class time. Another guidance counselor also received numerous self-referrals from Respondent's students who were concerned that they were not learning American government, the course subject matter, and that Respondent was talking about his court case. Martin, who had formerly served as a social studies teacher at the school with Respondent, was unable to discuss complaints she received with Respondent. He would not communicate with her and requested she not be allowed to sit in parent conferences with him. As a result, Martin was forced to communicate with Respondent in writing. She handled several complaints of students and parents in this manner. Guidance counselor Elizabeth Konen informed Respondent of complaints from students and parents. Usually, Respondent advised Konen he had no time to participate in conferences with the parents and students. In some instances, Respondent would not respond to parents requests that he contact them. At other times in parent conferences, Respondent would discuss his personal problems with the administration rather than the student's problems. Respondent improved in this school year slightly on textbook accountability, but books and desks continued to be defaced. He also continued to disregard his defined duty hours. Respondent did not turn in any lesson plans during the entire school year. At the conclusion of the year, he turned in a complete set of plans. Those plans did not meet requirements of indicating what part of the unified curriculum objectives had been met. In addition to David Culp, who continued to receive a large number of student discipline referrals from Respondent, Sandra Cowne was assigned to be a dean. Ms. Cowne's testimony is that 35 to 45 percent of her time was spent dealing with referrals by Respondent. Cowne noted 75 per cent of those referrals could and should have been handled by Respondent. Cowne requested students who were referred by Respondent to write out the details of the incident where the student's version differed with that of Respondent. Usually, Respondent did not indicate on the referral form that any action had been taken by him, or whether he had provided instruction to his students about expected and acceptable behavior. Students admitted to administrators that they deliberately "egged" Respondent on, particularly when he made personal comments about them. They also complained that Respondent would shut the windows and make them sit in the heat for discipline, or that he would turn off the air conditioner. They complained that Respondent made them write sentences as punishment, an inappropriate method of discipline. Cowne dealt with several problems when it became apparent Respondent did not have control of his classes. She assisted Respondent in calming classes down and restoring order. The disruption caused by discipline problems adversely affected the amount of learning that took place in Respondent's classroom. Luke Thornton decided to extend the NEAT Procedure to the cover the entire 1984-85 school year. During this time, numerous conferences were held and memos provided to Respondent concerning a multitude of problems. Respondent was observed in class by three administrators. The first observation was conducted on September 19, 1984, by H. W. Berryman, an assistant superintendent and area administrator. An employee of the Palm Beach County School District for 24 years, Berryman has evaluated the performance of principals, teachers, department heads and directors. In his memo to Luke Thornton following the observation, Berryman noted that too much time was taken with roll call and students were not attentive to Respondent's lecture. Berryman was concerned that students in the class were not involved in the total learning process. Berryman stated that he foresaw Respondent "in serious difficulty in managing conduct of students and considered this his most urgent need for growth." On October 4, 1984, Respondent was observed by Dr. Mona Jensen. Jensen is a consultant, certified by the Florida Performance Measurement System (FPMS). The FPMS was designed to determine effective teaching behaviors. Jensen also trains other administrators in the use of FPMS, both locally and statewide. The FPMS utilizes a written instrument called a Summative Observation Form. This form is used to evaluate teacher performance by recording the types of effective and ineffective behaviors observed in four domains: management of student conduct, instructional organization, presentation of subject matter and communication skills. Jensen has previously observed teachers with performance problems on the NEAT procedure. The report provided by Jensen to Respondent and Luke Thornton was based on actual behaviors of Respondent which she observed. Jensen noted in the report that students were talking to one another and not participating in the activity at hand. Jensen provided specific recommendations for improvement in all the areas addressed by the Summative Observation Form. According to Jensen, the main problem with Respondent's teaching technique was the lack of several positive teaching behaviors. She offered Respondent a conference and assistance, but he rejected her offer. Respondent was also observed by Lois Biddix on October 29, 1984. She is a FPMS certified state trainer and is authorized to train administrators to observe teachers. Biddix used the Summative Observation Form in her observation of Respondent. Biddix provided a written summary to Respondent and to Luke Thornton. She observed students talking and engaging in activities unrelated to the lesson. The atmosphere in the classroom, she observed, was sedentary and lethargic. Students suffered from boredom and frustration caused by Respondent's lack of enthusiasm and failure to introduce new content into the lesson. Biddix's observation of students talking, putting on makeup and sleeping are consistent with those of Berryman and Jensen. Biddix's concern was that students were not involved in the learning process. Her recommendations for improvement were consistent with those noted by Jensen. Dr. Jensen completed a second observation of Respondent on January 31, 1985. Again, she provided a written summary of her observations to Respondent and Luke Thornton. On this occasion, Respondent was presenting a lesson and students were not paying attention or participating in the class discussion. Respondent became frustrated with a student who made a personal remark to him. Jensen's recommendations for improvement were basically the same as those proposed by her in October, 1984. She again offered to arrange a conference with Respondent to discuss recommendations and he again spurned her offer. In response to a recommendation by Earl Higgs that Respondent observe successful teachers in their classrooms, Respondent advised that he wanted to observe Catherine Thornton and Mike Lott. Respondent did not associate with these teachers professionally or otherwise. Both Lott and Catherine Thornton requested that Respondent not be allowed to observe their classes. This request was honored by Luke Thornton because he was aware that Respondent disliked these two teachers. Respondent's annual evaluation for the 1984-85 school year indicated the atmosphere in his class was not conducive to learning. He was criticized again concerning the discipline of his class. It was also noted that he continued to make unprofessional comments to his students despite warnings not to do so. Luke Thornton had reviewed specific incidents of such conduct with Respondent during the school year. The evaluation also noted Respondent's failure to adhere to defined duty days after warnings, other poor work habits (i.e., lesson plans) , and his inability to get along with his peers. The 1985-86 School Year Luke Thornton extended the NEAT procedure for Respondent through November 1985, with the hope that Respondent's performance would improve. In the August 19, 1985 letter, Thornton stated: In order to assure that you are given every opportunity to be successful, I am extending the NEAT procedure to November 1, 1985. If at that time, the deficiencies consistently noted . . . continue to exist, I will make my recommendation to the superintendent concerning your employment status with the Palm Beach County School Board. The testimony of Respondent's students for the first semester of the 1985-86 school year confirm that Respondent did not change his teaching techniques despite suggestions given to him for improvement. 9l. One student testified that on the first day of class Respondent told the students they were immature. Other students testified to Respondent's repeated statements that they were immature, childish and that he did not like them. Further, Respondent continued to discuss his problems with the administration during class time. Classroom temperature remained uncomfortable. Respondent advised students to complain to the administration. In one instance, a student vomited in the classroom, creating a foul odor. Although students complained about the smell and administrators located another available classroom, Respondent refused to move his classes. Students testified that Respondent's reputation among them was that he was a "jerk" and a bad teacher who was not liked or respected. Several students stated that they would not want Respondent as their teacher again. He had a bad attitude and they either did not learn anything or they did not learn as much as they felt they should. Respondent did display improvement in taking roll call issuing progress reports, adhering to defined duty days and reducing the number of failures in his classes. He continued to fail to attend open house and to provide adequate lesson plans. In addition to Ms. Cowne and Mr. Culp, Linda Chubbuck was assigned as dean at John I. Leonard High School for the 1985-86 school year. Chubbuck received referrals of students from Respondent which were usually for such minor infractions as talking in class, refusing to be quiet, or not writing "punishment sentences". Student and parent complaints were received by the deans as a result of Respondent continued making students write repetitious sentences. Groups of students were still referred by Respondent. On two occasions, Chubbuck was referred nine to ten students at one time. Cowne was referred six students at one time. The groups were usually referred by Respondent because the students were not being quiet, would not settle down or were otherwise causing disruption. The students who were referred to the deans described Respondent's classes as chaotic. They described Respondent as "caustic and cutting with them." Further, Respondent did not take action to control his classes and rarely instructed students concerning behavior. The deans continued to answer Respondent's requests to come to his class to settle the class down. David Culp saw no improvement in Respondent's ability to control his classes over a three year period. Respondent continued to have more referrals than other teachers, and it was difficult to support Respondent's actions. Due to the constant chaos in Respondent's classes, the deans concluded that very little learning could be taking place. The number of referrals from those classes decreased sharply after Respondent was later suspended from the school. Guidance counselors continued, during this school year, to receive the same type of complaints about Respondent as they had in the past. The only difference was the names of the students making the complaints. The guidance counselors concluded that Respondent was not benefiting students emotionally or academically. Dr. Mona Jensen conducted her third and final observation of Respondent on December 2, 1985. She observed that Respondent's pattern of instruction had not changed. She determined his lesson plan to be insufficient. Respondent had not added any of Jensen's prior recommended positive behaviors to his technique. Respondent continued to fail to provide motivational or positive reinforcement to his students. Jensen concluded that Respondent's "teaching behaviors" were ineffective, ranking Respondent below average as a teacher. Jensen testified that a teacher's behavior should not change based upon the quality of the students. Further, a professional should not allow personal problems with the administration to interfere with providing successful opportunities to students. H.W. Berryman conducted a second observation of Respondent in December, 1985. Berryman was more complimentary of Respondent than was Jensen. Berryman noted Respondent had improved in getting instruction started in the class. He also commended Respondent's knowledge of the subject matter, but noted Respondent seemed to be writing off a majority of the students in the class by allowing them to be inactive and uninvolved in the learning process. Respondent did not communicate well with other social studies teachers at any time at issue in this cause. No improvement of Respondent's behavior in this area was noted during the first semester of the 1985-86 school year. He had heated words for Catherine Thornton, the department chairperson, and expressed his disdain for her. He accused another teacher of theft of a map from his classroom. The atmosphere of the workroom for social studies teachers at the school was hostile and uncomfortable when Respondent was there. Respondent continued to perceive his assignment to teach 9th graders to be a demotion. His peers did not agree. Testimony of teachers indicates that each level of teaching has unique problems. Some teachers volunteered to teach 9th grade. Respondent had difficulty with the administration over reserved parking spaces for the deans, refusing to refrain from parking in the places reserved for them until ordered by Luke Thornton to park elsewhere. The school's security officer was asked by Respondent to investigate the theft of pens and pencils from his desk, as well the source of a stick figure drawing of Respondent. The security officer had not received similar requests from other teachers. An evaluation of Respondent on November 18, 1983, noted he did not have an up to date plan book; that parent complaints about Respondent's unwillingness to work to resolve student problems had been received; and that Respondent remained unable to have a positive relationship with coworkers. Respondent was on the NEAT procedure for a total of 16 academic months. During that time, Respondent's teaching style did not change. He continued to make disparaging remarks to students, failed to provide classroom management and failed to improve his peer relationships. He did not attend open house functions, and failed to maintain adequate lesson plans. Parent and student complaints about him did not diminish. District administrators and school personnel were unable to influence Respondent to change his behavior. Due to Respondent's inability to change and the finding that Respondent was damaging students, Luke Thornton recommended Respondent be terminated from employment. Respondent was suspended in February of 1986, and subsequently terminated from employment by the school board. In Luke Thornton's professional opinion, which is credited, Respondent performed incompetently as an educator from the fall of 1981 until his termination. Further, Respondent's personal conduct during that time seriously reduced his effectiveness as an employee of the district school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner submitted 128 proposed findings of fact. Those findings are treated as follows: 1. Included in finding 2.-3. Included in part in findings 1-3, remainder rejected as unnecessary for conclusion reached. 4.-5. Included in findings 4-5. 6. Included in findings 6-7. 7.-8. Included in findings 9-10. Included in finding 12. Included in finding 11. Included in part in finding 6, remainder rejected. Included in finding 7. Addressed in findings 13-14. 14.-15. Addressed in finding 14. 16. Included in finding 15. 17.-18. Addressed in findings 16 and 14. Included in finding 17. Included in finding 18. 21.-22. Included in findings 18-19. 23.-24. Included in findings 20-21. Included in finding 23. Included in finding 24. Included in finding 25. 28.-30. Included in findings 26-28. Included in finding 29. Included in finding 30. Rejected as unnecessary to conclusion. 34.-35. Included in finding 32. 36.-37. Included in findings 33-34. Included in finding 31. Included in finding 36. 40.-41. Included in findings 37-39. 42.-43. Included in findings 41-42. 44. Addressed in part in finding 43. Remainder rejected as unnecessary to conclusion. 45.-55. Included in findings 44-54. 56.-57. Addressed in finding 55. Included in finding 56. Included in finding 48. 60.-61. Included in findings 56-57. 62. Included in findings 58-59. 63.-64. Included in findings 60-61. 65.-66 Included in finding 62. 67.-70. Included in findings 63-66. 71.-75. Included in findings 67-70. 76.-83. Included in findings 72-77. 84.-85. Included in finding 76. 86. Included in finding 71. 87.-94. Included in findings 77-83. 95.-128. Included in findings 85-111, except for a portion of proposed finding 122 which is rejected as unnecessary for conclusion reached. RESPONDENT'S PROPOSED FINDINGS Respondent submitted 145 proposed findings of fact. They were encompassed in 52 pages and are treated as follows: 1.-19. Rejected as unnecessary to conclusion reached and cumulative. 20.-24. Included in part in findings 13-14, and 21; remainder rejected as unnecessary to conclusion. 25. Addressed in part in finding 15. Remainder unnecessary for conclusion. 26.-28. Rejected as unnecessary for conclusion reached. 29.-31. Addressed in part in finding 20. Remainder rejected as unnecessary to conclusion. 32.-33. Included in findings 37-38. 34. Included in finding 60. 35.-36. Included in part in finding 88, remainder rejected as unnecessary to conclusion. 37.-38. Included in part in finding 108, remainder rejected as unnecessary to conclusion. 39.-40. Included in part in findings 3133, remainder rejected as unnecessary to conclusion. 41.-52. Rejected as unnecessary to conclusion reached. Included in part in findings 20-22, remainder rejected as unnecessary to conclusion reached. Rejected as unnecessary to conclusion reached. Included in part in finding 40, remainder unnecessary to conclusion. Included in finding 23 in part, remainder rejected as unnecessary to conclusion. 57.-63. Rejected as unnecessary to conclusion. 64.-65. Included in part in finding 93, remainder rejected as unnecessary to conclusion. 66.-73. Rejected as unnecessary to conclusion reached. 74. Included in part in finding 113-114, remainder rejected as unnecessary to conclusion. 75.-80. Rejected as unnecessary to conclusion. Addressed in finding 45. Rejected as unnecessary to conclusion reached. 83.-84. Included in part in finding 46, remainder unnecessary to conclusion reached. 85. Rejected, unnecessary. 86.-87. Addressed in part in findings 46 and 57, respectively; remainder rejected as unnecessary to conclusion. 88. Included in part in finding 88. Remainder unnecessary. 89.-90. Rejected as unnecessary to conclusion reached. 91.-96. Included in part in findings 34-35, remainder rejected as unnecessary. 97.-100. Rejected as unnecessary to conclusion reached. 101.-102. Included in part in finding 14, remainder unnecessary to conclusion. 103.-107. Rejected as unnecessary to conclusion. 108.-113. Included in part in findings 58-59, and 79; remainder rejected as unnecessary to conclusion. 114.-118. Rejected as unnecessary to conclusion. 119.-120. Included in part in finding 87, remainder rejected as unnecessary to conclusion. 121.-123. Rejected as unnecessary to conclusion reached. l24.-125. Included in part in finding 80. Remainder rejected as unnecessary to conclusion. 126.-129. Included in part in findings 81-84, remainder rejected as unnecessary to conclusion. Included in part in finding 67. Remainder rejected as unnecessary to conclusion. Included in part in finding 86, remainder rejected as unnecessary to conclusion. Rejected, unnecessary to conclusion and cumulative. Included in part in finding 88, remainder rejected as unnecessary to conclusion. Included in part in finding 89, remainder rejected as unnecessary. 135.-136. Rejected, unnecessary to conclusion reached. 137.-141. Included in part in findings 102-103, remainder unnecessary to conclusion. 142.-143. Included in part in finding 85, remainder rejected as unnecessary to conclusion. 144.-145. Included in part in finding 110, remainder rejected as unnecessary. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Suite C-135 Tallahassee, Florida 32303 Thomas W. Young, III, Esquire 208 West Pensacola Street Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator. Professional Practices Services Department of Education 319 W. Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issue for consideration herein is whether Petitioner should be granted certification as a law enforcement officer in Florida.
Findings Of Fact In early November, 1988, the Palmetto, Florida Police Department submitted an application for certification as a police officer for Petitioner herein, James L. Foy, to the Criminal Justice Standards and Training Commission. The CJSTC is the agency in Florida charged with the certification of law enforcement personnel in this state. The Affidavit of Compliance submitted with the application reflected that "all criminal history records have been expunged under the provisions of Section 943.058(6)(a)", Florida Statutes. By letter dated February 8, 1989, the CJSTC notified Petitioner that it was denying his application for certification because: You knowingly engaged in sexual intercourse with a minor female person, after you had attained majority and while employed and certified as a law enforcement officer, though off duty. The parties stipulated, and it is so found, that the CJSTC has not conducted an independent background investigation of the Petitioner and relied solely on the single incident as set forth above as establishing that the Petitioner is not of good moral character. Petitioner served as a police officer with the Bradenton Police Department from April, 1982 to June, 1985 when he resigned. In the fall of 1984, when he was twenty-four years old, Petitioner was performing security services, in an off duty capacity, at a high school football game in Bradenton. After the game, Petitioner's supervisor in the police department, Corporal Simpson, invited him to come home with him after the game for some refreshments. Petitioner agreed, and subsequently met Simpson, Simpson's fourteen year old daughter, and another girl at the Simpson home. Shortly after going inside, Simpson excused himself and left the room with the other girl, leaving Petitioner along with Ms. Simpson on the couch in the living room. Almost immediately, Ms. Simpson began making sexual advances toward Petitioner to which he was initially receptive, believing her to be somewhat older than she was. He knew she was not 18, but did not know that sex with someone over 15 was against the law. Shortly after Ms. Simpson began sexual advances toward him, loosening his trousers and rubbing his penis, leading to her committing fellatio on him, Petitioner became uncomfortable with the situation, terminated the encounter, and left the Simpson house. During the course of an investigation into an allegation of sexual involvement of one or more Bradenton police officers with minor females in April, 1985, Captain Mayer, of the Manatee County Sheriff's Department interviewed Ms. Simpson and Petitioner's name came up. At that time, Mayer felt she looked older than she actually was. She wore "overdone" makeup and her speech and demeanor were promiscuous. She was obviously trying to make herself look older through the clothes she wore and admitted frankly she had initiated the contact with Petitioner. She also indicated she had sex with others, including other police officers, and could see nothing wrong with it. Mayer later interviewed Petitioner about this at the Bradenton Police Department. Petitioner was not under arrest at the time and frankly admitted the one involvement with Ms. Simpson at her house, as described above. After completing the investigation, Mayer made his report to the Assistant State Attorney who charged Petitioner with having sex with a child under age 16. No evidence was presented as to the outcome of that charge. While serving as a police officer with the Bradenton Police Department, Petitioner received several written and verbal commendations and was named police officer of the year in 1984. He had no disciplinary record with the department. He was well liked and respected by his fellow officers and superiors on the force and was rated as having excellent law enforcement officer abilities and characteristics. His reputation for truthfulness and integrity within the department was outstanding. Petitioner is also highly thought of within the remainder of the law enforcement community in Manatee County even though the incident with Ms. Simpson is well known throughout that community. He still has an excellent reputation for truthfulness and integrity within the community and those who know his character feel he can function effectively as a law enforcement officer notwithstanding this incident. In 1988 the Palmetto Police Department conducted a background investigation of petitioner relevant to his prospective employment with the department. This thorough investigation included a polygraph examination and interviews with his previous employers, friends, neighbors, and others who know and have known him for years. The ultimate conclusion of this investigation was that Petitioner is of good moral character. A similar investigation by the Hardee County Sheriff's Department in 1989 established the same. Other individuals on the periphery of the law enforcement community, who have: know Petitioner and his family for many years are satisfied his character and his reputation for honesty and integrity in the law enforcement and business communities are superb.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Criminal Justice Standards and Training Commission find that Petitioner, James L. Foy meets the good moral character requirement of the certification statute and, all other qualifications being met, grant him certification as a law enforcement officer in Florida. RECOMMENDED this 3rd day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of January, 1990. COPIES FURNISHED: Gene Johnson, Esquire Florida Police Benevolent Association, Inc. General Counsel 300 East Brevard Street Tallahassee, Florida 32301 Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P. O. Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Post Office Box 1489 Tallahassee, FL 32302 FDLE P. O. Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent should be dismissed or otherwise disciplined for the reasons set forth in the Miami-Dade County School Board's Amended Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board, Respondent, and his Supervisors The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Gertrude K. Edlelman/Sabal Palm Elementary School (Sabal Palm), Miami Norland Senior High School (Norland), and North Miami Senior High School (North Miami). The principals of these schools have ultimate supervisory authority over all School Board employees assigned to their schools, including custodial employees. Raul Gutierrez is now, and has been for the past three years, the principal of Sabal Palm. Mr. Gutierrez succeeded Gertrude Edelman, after whom the school is now named. Mr. Gutierrez had served as an assistant principal at the school under Ms. Edelman for five years before he became the school's principal. Selma McKeller is now, and has been for the past 11 years, the head custodian at Sabal Palm, having supervisory authority over all other members of the school's custodial staff. Willie Turner is now, and has been for the past four years, the principal of Norland. Gladys Hudson was an assistant principal at Norland during the 2002-2003 school year. Among her responsibilities was to oversee the school's entire custodial staff, including the head and lead custodians. Respondent has been employed by the School Board since March of 1989. Respondent was initially hired as a custodian and assigned to Sabal Palm. In August 1998, while still assigned to Sabal Palm, Respondent was promoted to his present position, lead custodian, which is a supervisory position. Respondent remained at Sabal Palm until August 2002, when he was placed on "alternate assignment" at Norland, where he worked under the direct supervision of the school's lead custodian, Leaford Harris. In December 2002, Respondent was placed on "alternate assignment" at North Miami. The Collective Bargaining Agreement As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II of the AFSCME Contract is the contract's "[r]ecognition" article. Section 3 of Article II provides as follows: The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; and (3) the designation of the organizational structure of the MDCPS and the lines of administrative authority of MDCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; I. Contract out for goods or services; and J. Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Definitions are set forth in Article V of the AFSCME Contract. They include the following: * * * Section 17. Working Hours-- Those specified hours when employees are expected to be present and performing assigned duties. Section 18. Workday-- The total number of hours an employee is expected to be present and performing assigned duties. * * * Section 27. Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. Section 4A of Article IX of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Section 13 of Article IX of the AFSCME Contract discusses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction." Section 1 of Article XI is entitled, "Due Process," and it provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (i.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade," and it provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled, "Cause for Suspension," and it provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI describes the "[t]ypes of [s]eparation." It provides in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling ten or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . Section 6 of Article XI addresses the subject of "[p]ersonnel [f]iles," and it provides as follows: A. Pursuant to Florida Statutes, Chapter 231.291 Personnel Files - Public school system employee personnel files shall be maintained according to the following provisions: Except for materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal under laws of this state, no derogatory materials relating to an employee's conduct, service, character, or personality shall be placed in the personnel file of such employee. Materials relating to work performance, discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment. No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming aware of the facts reflected in the materials. The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure. There shall be no statements placed in an employee's personnel file unless the employee has been given a copy. Upon request, the employee, or any person designated in writing by the employee, shall be permitted to examine the personnel file. The employee shall be permitted, conveniently, to reproduce any materials in the file, at a cost no greater tha[n] five cents per page. Such request should be made to the custodian of a personnel file, who shall permit examination of the records at reasonable times, under reasonable conditions, and under supervision of the custodian of the record. The custodian of the record shall maintain a record in the file of those persons reviewing the file each time it is reviewed. "Personnel [i]nvestigations" are the subject of Section 7 of Article XI, which provides as follows: The Board shall take steps to ascertain the identity of the complainant, prior to authorization of an investigation. No investigation of an allegation against an employee shall be made on the basis of an anonymous complaint. In the event of allegations and/or complaints being made against any employee, an investigation which may result in information being placed in the employee's personnel file shall not be concluded by the Miami-Dade County Public Schools Police (MDCPSP) or any person prior to the time that the employee receives identification of the complainant and the nature of the complaint. In all Board investigations which may lead to suspension or dismissal of an employee, only the Superintendent or his/her designee may authorize such an investigation. When a formal investigation has been authorized, all personnel involved will be advised by the MDCPSP investigator of their legal rights, and the procedures available to them for representation. Information that is not substantiated will not be used for disciplinary action against the employee. In all Board investigations resulting in discipline, the employee shall be provided with a copy of the report. With the permission of the employee, the Union shall also receive a copy. When investigatory reports are provided, said reports shall be transmitted within a timeframe consistent and harmonious with basic due process. In all cases in which the preliminary investigation is concluded, with the finding that there is no probable cause to proceed further and no disciplinary action taken or charges filed, a statement to that effect signed by the responsible investigation official shall be attached to the complaint and the complaint and all such materials shall be open, thereafter, to inspection. Where allegations have not been proven against an employee, no reprisal or punitive action shall be taken against an employee. Pertinent School Board Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including School Board Rules 6Gx13-4-1.08 and 6Gx13-4A-1.21. School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools employees have a right to work in a safe environment. Violence or the threat of violence by or against students and employees will not be tolerated. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. September 1989 Investigation In September of 1989, Respondent was the subject of an investigation conducted by what was then referred to as the School Board's Special Investigative Unit (S.I.U.). The investigation culminated in an investigative report being issued on September 27, 1989 (in S.I.U. Case No. T1684). The report was written by Detective Sergeant Miriam McNeil-Green and read as follows: Allegation: On Wednesday, 09-13-89, Steven S. Newbold was arrested at Northwest 191 Street and 37 Avenue at 11:50 p.m. for driving with a suspended license, citation #55136-IR. The above allegation was reported to central S.I.U. office on September 14, 1989, by Sergeant Rudolf, Metro-Dade Police shift commander. Mr. Henry Hortsmann, Director, Office of Professional Standards, authorized a records check on September 14, 1989. I [Detective Sergeant McNeil-Green] responded to Metro-Dade headquarters building on September 20, 1989, in reference to the above offense. However, the traffic offense was not on file. I went to the Metro-Dade justice building, traffic division and was given a copy of the printout for the arrest of Steven Spencer Newbold. A copy of the printout is attached to this report. The arraignment date will be set. While at Metro-Dade headquarters building it was discovered that Steven Newbold has a felony and misdemeanor past as follows: On 02-24-88, Steven Newbold was arrested at Northwest 22 Avenue and 90 Street, Miami, Fl. 33142, for (1) No valid drivers license; (2) Driving with license suspended; (3) Grand theft auto; (4) Possession of marijuana (11 grams). On March 16, 1988, Newbold pled guilty to possession of marijuana. Adjudication was withheld and Newbold was placed on probation for one year. On March 16, 1988, Newbold pled nolo contendere to one count of grand theft auto and was placed on one year probation. Certified copies are attached. On May 11, 1988, Steven S. Newbold was arrested at 1461 N. W. 60 Street, apt. #5, Miami, Fl. 33141 for trespassing of structure. On July 14, 1988, Newbold pled guilty and was fined $78.75. Certified copies are attached. Vault information: Steven Spencer Newbold was hired on 03-22-89 as a custodian at Sabal Palm Elementary. On his application for employment, Mr. Newbold stated he had never been arrested. Conclusion: The allegation against Steven S. Newbold is substantiated, [in that] he was arrested on September 13, 1989 for a traffic offense. He also falsified his employment application by stating he had not been arrested. On October 1, 1990, Henry Horstmann, the director in the School Board's Office of Professional Standards referred to in the investigative report, authored a memorandum concerning the report for placement in Respondent's personnel file. The memorandum read as follows: SUBJECT: DISPOSITION OF INVESTIGATIVE
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the AFSCME Contract. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 August, 2004.
Findings Of Fact At all times relevant hereto, respondent, Floyd H. Cash, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-7376 on January 22, 1973. When the events herein occurred, Cash was employed as a police officer for the City of Eustis in Lake County, Florida, holding the rank of Patrol Sergeant. On the evening of July 26, 1980 respondent was on patrol duty working the seven p.m. to seven a.m. night shift. He had worked this shift for the prior three and one-half years. With Cash were two junior officers under his supervision, Officers Hicks and Brannen. With driving through a public park known as Carver Park, Cash observed a fifteen year old female engaging in sexual intercourse with an adult male. This was not unusual for Cash had run across between fifty and one-hundred similar situations in the past. However, on this occasion, he approached the two individuals and told them they were subject to arrest for their conduct, but he would not arrest them if they got back on the ground and completed the act of sexual intercourse. Fearing arrest, the two unwillingly attempted to complete the act but the male had difficulty maintaining an erection under the circumstances. After observing the couple from a few feet away for about thirty seconds, Cash, Hicks and Brannen departed the premises. During the above incident there was no force or profanity used by respondent, and he did not touch his weapon. Neither the male or female was arrested. Even so, the female suffered embarrassment and mental stress. For his actions Cash received an official letter of reprimand from the Chief of Police on September 30, 1980 for conduct unbecoming an officer. However, he continued to be employed by the Eustis Police Department until 1984. That year an unrelated shooting by a police officer took place prompting a review of police records by a newspaper reporter. The Carver Park incident was uncovered and received widespread media coverage in Central Florida. As a result Cash voluntarily resigned from the department in late 1984. He has not been employed as a law enforcement officer since that time. The filing of the administrative complaint herein followed in 1985. Cash openly and candidly admitted the above events occurred. He appeared to be truly sorry for the incident. He blamed it on job stress and burnout from working a 12-hour night shift for three and one-half years, and an error in judgment that one evening. Other than this lone incident, he has an outstanding law enforcement record, including an award for being the outstanding young law enforcement officer of the year in Eustis in 1983. His reputation within the community as a conscientious and dedicated law enforcement officer was attested to by various supporting witnesses and corroborating letters. It was also shown that he is active in various civic and church related activities in the community. Cash desires to return to work as a law enforcement officer, his- lifelong profession. Indeed, he has been considered for other jobs, including one in Kansas, his native state, but he cannot be employed while decertification proceedings remain pending.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the charges in the administrative complaint, and that his law enforcement certification be suspended for a two year period effective January 1, 1985, with reinstatement thereafter. DONE and ORDERED this 17th day of September 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 September, 1986.
The Issue Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 812381, based upon the allegations in the Administrative Complaint, Case No. 001- 1695-A, before the State of Florida, Education Practices Commission?
Findings Of Fact Respondent holds Florida Educator's Certificate No. 812381. As of April 11, 2001, Respondent taught at Dunnellon High School where her daughter was enrolled as a student. Her daughter is Valarie Baumgardner. On April 11, 2001, Respondent and her daughter, Valarie Baumgardner were at home. The daughter was on the telephone talking to her former boyfriend. The topic of their discussion was sex. This discussion was overheard by Respondent. As a consequence, Respondent made unflattering remarks to her daughter, to include calling the daughter a "slut." The television was on in the room where the daughter and Respondent were located at the moment. Respondent took the remote control device for the television and started hitting her daughter on the leg with it. Respondent had been drinking, so much so, that the daughter believed that Respondent was drunk. Eventually, the daughter hung the telephone up and asked her mother what the mother was doing; Respondent did not answer. Respondent pushed her daughter a few times and started kicking her, slapping her and scratching her face. Respondent hit her daughter with a chair. Respondent pushed the daughter into the wall. The daughter fought back by grabbing her mother's hair, putting the mother on the ground and placing her knee on her mother to control the other combatant. The daughter suffered bruises in addition to the scratch on her face as a result of the altercation. The outcome of the physical confrontation left the daughter's eye bleeding in the corner. At one point in the exchange, Respondent had a cigarette and ashes from the cigarette burned the daughter on her arm. The daughter telephoned a friend to come to her aid. The friend's mother drove to the home where the altercation took place accompanied by the daughter's friend. Those persons took Respondent's daughter away from the home. The daughter, the daughter's friend, and the friend's mother went to a nearby home where a law enforcement official resided. The law enforcement official decided to contact the police about the matter. At the time of the incident Ms. Baumgartner was 16 years old. Respondent also called for law enforcement to be dispatched as a result of her encounter with the daughter. Deputy Steven Smolensky of the Citrus County Sheriff's Office responded to that call. He first went to the home where Ms. Baumgardner had been taken, having been told that Ms. Baumgardner was a possible suspect. When he arrived at that location, Deputy Baumgardner observed Ms. Baumgardner's injuries. Ms. Baumgardner told Deputy Smolensky that Respondent had caused those injuries. He observed redness around Ms. Baumgardner's left eye. She had two or three scratches going down the inside of her left elbow. A bruise was observed around the right knee, and there were little red dots in the left wrist area which Deputy Smolensky surmised had been caused by a cigarette. Ms. Baumgardner commented that those red dots were the result of Respondent's actions. Following the interview with Ms. Baumgardner, Deputy Smolensky contacted Respondent. Upon observing Respondent, he believed that she was extremely intoxicated by virtue of the smell about her person, her slurred speech, her wandering around her residence and her talking incoherently. Sometime during the investigation Respondent told Deputy Smolensky that her daughter was a "bitch" and that she was an "asshole" for trying to get Respondent in trouble. Deputy Smolensky did not observe any injuries to Respondent. Deputy Smolensky arrested Respondent for child abuse. Respondent replied that the deputy could not arrest her because she was a school teacher. Deputy Smolensky told Respondent that the Respondent "was in fact under arrest." Respondent sat on the floor, crossed her legs, crossed her arms and refused to get up. Respondent was instructed several times to get up. She finally complied. She was placed in handcuffs and put in a patrol vehicle. On the way to jail Respondent became violent to the extent of kicking the metal divider between the front and the back of the car in which she was being transported; screaming for Deputy Smolensky to hurry up and kill her; and kicking the floor board of the car. Respondent told Deputy Smolensky that he had caused her to lose everything, her job, her house, and her dog. Once at the sheriff's office jail facility, Respondent refused to get out of the patrol car and had to be removed forcibly. She physically braced herself in the car to keep from being removed from the car. She was pulled from the car through the efforts of Deputy Smolensky and officers at the jail where she had been taken. At the time Respondent was screaming and spitting at the jailers and lightly kicked one of the jail officers. Respondent was placed in the drunk tank at the jail and for a while banged on the door and screamed. Eventually she calmed down. As Ms. Baumgardner established, the incident between Respondent and her made the front page of a number of newspapers. Persons at school were aware of the incident to include teachers and the Vice-Principal. Respondent agrees that the event was "in all the newspapers." Teachers and other people approached Ms. Baumgardner. Ms. Baumgardner perceived that "nobody looked at me the same anymore" after the incident. After the incident Ms. Baumgardner did not want to go back to the school and asked to be removed from the school where Respondent was employed and the daughter attended. Following the incident with her daughter, Respondent moved from her home and took residence in a home where Cindy Davidson resided. In April 20, 2002, Respondent and Ms. Davidson had a physical altercation after Respondent had accused Ms. Davidson of stealing or killing her dog. During this fight Ms. Davidson was bitten on the hand by Respondent. As a result of their encounter, Ms. Davidson called for assistance from law enforcement. Deputy David Edward Gater of the Citrus County Sheriff's Office was dispatched to the scene. After the deputy had interviewed Ms. Davidson, Respondent, who had left the residence where the altercation occurred, returned to the home a couple of hours later. Deputy Gater went back to the residence and made contact with Respondent. He did not observe any injuries to Respondent as a result of the altercation with Ms. Davidson. He sensed a small odor of alcohol about Respondent's person. Respondent's eyes were glazed over and she had a slight slur to her speech. On the whole, Deputy Gater believed that Respondent was intoxicated. He arrested Respondent for one count of battery and took her to the Citrus County Detention Center. The altercations on April 11, 2001, and April 20, 2002, that have been described did not lead to criminal law convictions.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Count 1, dismissing Count 2, and revoking Respondent's educator's certificate for a period of two years. DONE AND ENTERED this 26th day of September, 2003, 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 26th day of September, 2003.
