Findings Of Fact The Respondent is a teacher licensed in the State of Florida, holding a continuing contract of employment as a classroom teacher and assigned as a teacher at Boyd Anderson High School at times pertinent hereto. The Petitioner is the School Board of Broward County, a local school district charged with employing teachers for instruction of students and regulating the conduct and practices of those teachers in the course and scope of their employment with authority to impose disciplinary action on those instructional employees who have been found to have engaged in various forms of misconduct in office within the mandates of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code. On July 21, 1982, an Information was filed by the State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, charging the Respondent with kidnapping and sexual battery. On August 25, 1982, a capias was issued by the Circuit Court for the Seventeenth Judicial Circuit for the arrest of the Respondent for those charges. The Respondent has never been tried and no adjudication has been entered in that criminal proceeding as of the time of the hearing and the close of the evidence herein. The Respondent pled not guilty to those charges. John E. Aycock is the principal of Boyd Anderson High School. The Respondent was employed as one of his math teachers, having been so employed for two years at Boyd Anderson High School. He had a discussion with the Respondent concerning these charges and the Respondent acknowledged that he was charged with sexual battery and informed Mr. Aycock that he was innocent of those charges. The Respondent's evaluations as to his effectiveness as a teacher had all been satisfactory prior to the subject incident. Thomas J. Patterson is the Chief of the Internal Affairs Division of the Broward County School System and was so employed in July of 1982, at times pertinent hereto. The Respondent contacted him in a similar fashion regarding the subject charges and repeatedly denied them. Upon his recommendation, the Respondent was suspended from employment with the School Board, with pay, pending the outcome of the investigation of the subject charges. The remainder of Witness Patterson's testimony consisted totally of uncorroborated hearsay liened from prior police reports and what "others told him" regarding the Respondent's whereabouts on the date the conduct charged allegedly occurred and hearsay reports he received of the specifics of that conduct. No factual findings can be made herein regarding that hearsay testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the party, it is RECOMMENDED: That the petition filed against Joseph Brehmer in this proceeding be dismissed in its entirety and that his suspension be terminated. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1983. COPIES FURNISHED: James A. Brown, Esquire 200 South East 6th Street Courthouse Building Suite 600A Fort Lauderdale, Florida 33301 Terrence J. McWilliams, Esquire 1999 South West 27th Avenue Miami, Florida 33145 Joseph J. Brehmer 7824 North West 70th Court Tamarac, Florida William T. McFatter, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33338
Findings Of Fact Case History The Department of Education, State of Florida, has filed an Administrative Complaint against Respondent, Daniel E. Moody, the substance of which Complaint is discussed in the Issues statement to this Recommended Order. Respondent has requested a formal hearing to consider the Administrative Complaint, having denied the material allegations of the Complaint. See Subsection 120.57(1), Florida Statutes. Following notice, a hearing de novo was held on March 3, 1982. In the course of the final hearing, Petitioner presented Clarence Newsome, Robert D. Williamson and Dalton Epting as witnesses. Petitioner offered two (2) exhibits which were received into evidence. Respondent testified in his own behalf and offered as witnesses William Benjamin Kyle, William L. Stone, and Rudolph W. McKissick. Respondent had one exhibit, late- filed, which is not granted admission for reasons which will be discussed in the Conclusions of Law section to this Recommended Order. Material Facts Respondent holds a teaching certificate issued by Petitioner. That certificate is No. 314402, Rank III, certifying Moody in the area of math. The certificate is valid through June 30, 1988. Respondent is presently employed and was so employed at all times material to the Administrative Complaint as a high school teacher in the public school system of Duval County, Florida, assigned to Englewood High School to teach mathematics. Presently, Respondent is Chairman of the Math Department in that school. On November 9, 1980, around 9:30 A.M., Respondent entered the Pic-N- Save store located at 7912 Lenn Turner Road, Jacksonville, Florida. Once inside the store, he went to a shopping aisle where automobile tune-up kits were located and picked up a package which had been opened. This package normally contained three (3) tune-up items; namely, points, condenser and rotor cap. The rotor cap in this particular package had been removed and an employee in the store had retaped the package container and placed it on the shelf before this occasion. After examining the package, Respondent replaced it on the shelf and picked up a second package which also was a tune-up kit containing three (3) parts. This package was sealed and had not been opened prior to Respondent's selection of the item. Respondent then began to tear open the cellophane which enclosed the tune-up pieces in the second package, pausing when persons who were in the store would enter the area where Moody was located. At those points in time, Respondent would stop tearing the cellophane and take other auto parts off shelves and then hang them back. Respondent was moving up the aisle as he conducted this process of opening the package. Once the package had been opened, he removed a rotor cap from the package and placed it in the right front pocket of his pants. Respondent then walked back to the area where he had originally picked up the second tune-up kit, laid that package down and picked up the original tune-up kit which had been taped by store employees and which was missing the rotor cap. He then proceeded to a service counter where the store manager, Clarence Newsome, was working. Moody spoke to Newsome and pointed out the fact that a part was missing from the first package and asked Newsome to discount the tune-up kit price, which Newsome agreed to do, discounting the cost from $2.59 to $1.59. This discount was noted by marking down the price on the package and returning it to Respondent. Robert Dale Williamson, an officer with the Jacksonville Sheriff's Department and part-time security officer at the Pic-N-Save store had observed Moody's activities with the two (2) packages of tune-up parts and had left his concealed observation position and followed the Respondent to the counter where Newsome was located. Once Respondent had concluded his transaction with Newsome, he turned around and was confronted by Officer Williamson who produced his sheriff's badge and identification card and asked Moody to accompany him to an area in the downstairs portion of the store. Moody and Williamson walked downstairs and once in a room in the downstairs location, Williamson asked Moody to remove the part that he had placed in his pocket. Moody responded that he did not have a part in his pocket and this remark was followed by Williamson's act of "frisking" Respondent and removing the black rotor cap from Moody's right front pocket, which had been taken from the second auto tune-up kit package. Moody made no comment about this item being removed from his pocket. While another employee stayed with Moody in this room, Williamson then went back into the store area where the second package had been left, recovered the package and the two (2) items that remained in that package and subsequently placed those items and the rotor cap which had been removed from Moody's pocket into a bag which was sealed and left with the store manager. Testimony by Dalton Epting, Director of Certified Personnel for Duval County School System, established that with the exception of a limited number of school personnel, the events of November 9, 1980, related to the alleged shoplifting were not known throughout the school system, either by faculty or students, nor in the general community. At the time of the incident, Epting was Principal at the high school at which the Respondent taught. Epting conferred with Respondent about the incident when it was brought to his attention and the Respondent having professed his innocence, Epting did not recommend further action be taken by the Duval County School Board. As an educator, Epting testified and accurately stated that a shoplifting incident is a matter which is not an acceptable example for young people and is an immoral act. In this instance, Epting correctly identified that the school authorities, students and community having not been told of the matters at issue here, Respondent has not lost his effectiveness as an educator, and Moody continues to maintain a good relationship and reputation among other teachers. During Epting's administration at Englewood High School, Respondent was promoted to Chairman of the Math Department and Respondent has passed a screening process which would allow him to be promoted to an administrative position. William Leon Stone who is the assistant principal for student services at Englewood High School also accurately stated that there has been no loss of effectiveness on the part of Respondent in his abilities as teacher, premised upon a knowledge by the overall community or by faculty members and school officials or students of the incident in question, those various groups having not been given knowledge of the events. Stone has found Moody's performance as teacher at Englewood High School to be in keeping with the standards of the Duval County School System. Finally, testimony was offered by Rev. Rudolph W. McKissick who is the pastor of Bethel Baptist Institutional Church in Jacksonville, Florida. Respondent is a member of that congregation and is an ordained deacon. Rev. McKissick gave testimony to the effect that Respondent has good moral character and is an active parishioner in church activities.
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 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.
The Issue The central issue in this case is whether or not Respondent should be suspended retroactively without pay from his non-instructional position and terminated from his employment as a custodian.
Findings Of Fact At all times material to the allegations of this case, Respondent was employed as a custodian at VBHS. At the beginning of the 1992-93 school year, Anthony Dissis, a deputy employed by the Indian River County Sheriff's Department, was assigned to be an undercover officer at VBHS. Deputy Dissis enrolled at the school, attended classes with other students, and in all respects attempted to give the appearance of being a student at the school. To that end, he met and talked with other students. During the course of his school experience, Deputy Dissis met Respondent who was known on the campus and who was frequently in student areas. In late October, 1992, Deputy Dissis approached Respondent and sought to purchase marijuana. Despite some initial delays, Deputy Dissis and Respondent came to an understanding whereby the officer gave $50.00 to the Respondent for marijuana. Later, Respondent told Deputy Dissis to meet him at a parking lot on campus and the delivery would take place. At the appointed time, Deputy Dissis went to the parking lot and Respondent handed him an envelope in which the contents were later tested and confirmed to be marijuana. Such testing was performed by Bob Parsons, an analyst with the regional crime laboratory. Marijuana is a controlled substance as defined by Florida law. Subsequently, the Respondent was suspended from his employment. When tried on the criminal charges which arose from the same incident complained of herein, Respondent was found not guilty by a jury.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Indian River County School Board enter a final order confirming the suspension without pay of the Respondent, and terminating his employment as a school custodian. DONE AND RECOMMENDED this 30th day of July, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0327 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraph 1 is accepted; however Respondent's age and place of birth are irrelevant to these proceedings. Paragraph 2 is rejected as irrelevant to the allegations of this case. With the deletion of the third sentence which is rejected as irrelevant, paragraph 3 is accepted. With regard to paragraph 4, it is accepted that Dissis paid Respondent $50.00 for marijuana on school grounds and near the gym class; it is not established that other students viewed the transaction as suggested by the paragraph and such finding is rejected as not supported by the evidence presented. With regard to paragraph 5, it is accepted that Dissis and Respondent worked out the details of the marijuana delivery while Respondent was working, on school property, and near the gym. It is further accepted that the delivery was to take place later in the day at a location on campus; otherwise, the paragraph is rejected as not supported by the evidence presented or irrelevant. See comment to paragraph 4 above. Paragraphs 6 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: Paragraph 6 (Respondent's paragraphs 1 through 5 were preliminary, not proposed findings of fact) is accepted. Paragraphs 7 and 8 are accepted. Paragraph 9 is rejected as argument, or not supported by the weight of credible evidence. COPIES FURNISHED: G. Russell Petersen G. RUSSELL PETERSEN, P.A. 3426 Ocean Drive Vero Beach, Florida 32963 Thomas E. Shafovaloff 411 North Park Avenue Suites 12-14 Winter Park, Florida 32789
The Issue Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Findings Of Fact Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District. At all times material to the allegations of this case, Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS). Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores. While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors. In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site. While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked, second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis. Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent. After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors. In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors. On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to remove his penis from his pants, and exposed his own penis to Officer Buck. All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located. Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper. As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school. The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited. Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts were committed on school property during the school day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing Respondent from his employment with the school district. DONE AND ENTERED this 27th day of August, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1998. COPIES FURNISHED: Carlos E. Mustelier, Jr., Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
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.
