Findings Of Fact At all times material hereto, Respondent, Carolyn Colebrook, was employed by Petitioner, School Board of Dade County, as a paraprofessional in the school system of Dade County, Florida. At the time of the incident which precipitated Petitioner's action against Ms. Colebrook, she was assigned to Bunche Park elementary school. In 1960, prior to emigrating from the Bahamas, Ms. Colebrook visited the United States for the first time, after graduating from high school in Hatchet Bay, in the Bahamas. She visited the Unites States with four girlfriends who also went shopping together. At the time of the visit in 196o, Ms. Colebrook was eighteen years old. During her American holiday, after a shopping trip with her companions, Ms. Colebrook was found to be carrying stolen merchandise of minimal value in her straw tote bag. Ms. Colebrook does not know how the merchandise came to be in her bag, but surmises that it was placed there, as a spiteful act, by one of her travelling companions to whom she refused to lend money. Nevertheless, Ms. Colebrook was arrested on charges of petty larceny and held for eighteen days until her parents could come for her, travelling from their residence in Hatchet Bay, Bahamas. Arriving with an attorney, Ms. Colebrook's parents arranged her release and thereafter accompanied her immediately to the airport, and back to their home in the Bahamas. Ms. Colebrook's parents told her that her record had been sealed or expunged. In 1972, Ms. Colebrook immigrated to the United States along with her family. As part of the immigration process, she underwent fingerprinting and other investigation procedures which she understood to be supervised by the American counsel. No problems or criminal records of any kind blocked Ms. Colebrook's immigration, and she entered the United states permanently in 1972. After that, Ms. Colebrook was under the reasonable impression that the incident surrounding her arrest in 1960 had, indeed, been removed from her record, if any existed. Six months after her arrival, Ms. Colebrook was hired by Petitioner. Petitioner's employment application contained a question asking whether the applicant had ever been arrested. In response to this question, Ms. Colebrook answered "no". In making that representation, she had no intention to deceive or misrepresent the fact that she had been arrested. Instead she was relying on her reasonable impression that her arrest in 1960 had been expunged and was of no consequence. On the morning of March 7, 1989, during the breakfast period, Ms. Colebrook was quietly summoned to the school office by Mr. Footman, a security employee at Bunche Park. Mr. Footman told Ms. Colebrook she had an emergency telephone call. Ms. Colebrook's specific duty at that time was to care for a student who was an autistic child and profoundly mentally retarded. The child required the full time care of Ms. Colebrook and was dependent upon her. Ms. Colebrook and the child were in a classroom setting with other students including a teacher and another paraprofessional. When Ms. Colebrook was unable to assist the student, one of the other adults in the classroom assumed the responsibility along with their existing assignments. When Mr. Footman approached Ms. Colebrook, her student charge had finished her meal, and Ms Colebrook started toward the office, taking the child with her. However, seeing the approach of her colleague, Spelma Williams, Ms. Colebrook, as was the custom, asked Ms. Williams to take charge off the child to free Ms. Colebrook to take the phone call. Ms. Williams agreed, and Ms. Colebrook proceeded to the office, leaving her student in the care of Ms. Williams, who is a teacher's aide in Ms. Colebrook's classroom. Arriving in the school office, Ms. Colebrook took the emergency call, which was from her sister. During the phone call, Ms. Colebrook was notified that two detectives were "coming for" her at school. Ms. Colebrook did not wish to be approached or interrogated by these detectives while at her school for both personal and professional reasons. Specifically, she did not want to be personally embarrassed, nor did she wish to bring further embarrassment upon her school, which had just begun a widely reported program of School Based Management. In reaching her decision, Ms. Colebrook was sensitive to the fact that a shooting, involving a teacher, had taken place on Campus in the recent past and was concerned that the potential disruption caused by her impending arrest would interfere with the learning environment. After Ms. Colebrook ended her conversation with her sister, she asked for her principal and was told that she was out. Advising members of the office staff that she had an emergency at home, and had to leave, she left the office. At the entrance of the office, Ms. Colebrook saw her assistant principal, Dr. Schultz, standing with another administrator. As she passed him, Ms. Colebrook told Dr. Schultz that she had an emergency and had to leave right away. Ms. Colebrook hurried to her classroom where she told another individual about her emergency and her need to leave immediately. Thereafter, Ms. Colebrook left the school. The school policy requires that all personnel sign out before leaving the school. In previous emergency situations, the assistant principal has signed out personnel. Ms. Colebrook did not take the time to complete the necessary paper work which would have signed her out, and no other school personnel, including the assistant principal did it for her. After Ms. Colebrook left Bunche Park on the morning of March 7, 1989, she immediately telephoned the detectives and the courthouse, and was notified of three warrants issued in her name. Thereafter, she hired an attorney to represent her, and resolved, without criminal conviction, all criminal charges against her. The first charge, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 83-11822, involved an arrest for the receipt and cashing of unemployment checks while employed. At the hearing, Ms. Colebrook represented that before she had cashed the checks she contacted the unemployment compensation office and asked what to do with the checks now that she was employed. Ms. Colebrook stated that a representative from the unemployment compensation office had told her the checks were hers and to cash them. The representative of the unemployment compensation office was not present to testify at the hearing. Nevertheless, a finding of guilt based on a plea of nolo contendere was entered against her, but adjudication was withheld, resulting in no conviction. Ms. Colebrook was placed on probation on June 7, 1984. Ms. Colebrook's probation was conditioned on her payment of restitution in the amount of $2,400 and the completion of 500 hours of community service. Ms. Colebrook failed to meet the requirements of her probation. At the hearing, Ms. Colebrook said that the reason she stopped making the payments was that she had suffered personal problems which created financial difficulty. However, she did not make an attempt to clarify the matter with the judicial system. As a result, a warrant was issued for her arrest in July, 1985. However, after she was made aware of the warrant following the March 7, 1989 incident, Ms. Colebrook made full restitution, and her probation was terminated on May 11, 1989. Her failure to timely address her financial situation with the court demonstrated irresponsibility and a failure to sustain the highest degree of ethical conduct. Whether Ms. Colebrook's actions had an effect on the respect and confidence of her colleagues, her students, the students' parents or other members of the educational community, or on her awareness of the importance to maintain such confidence was not demonstrated at the hearing however. In fact, she did ultimately make full restitution, and the matter was resolved. The second charge, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 84-66132, involved a check for forty dollars cashed at Winn Dixie. The check was not paid by the bank and was returned to Winn Dixie. When Ms. Colebrook was notified by Winn Dixie, she promptly made full payment of the check plus the service charge for returned checks. However, unknown to Ms. Colebook, the criminal file on the matter was not closed until she inquired after the incident on March 7, 1989. She appeared in criminal court, and the case was dismissed for lack of prosecution on May 26, 1989. The third incident involved Ms. Colebrook's refusal to pay for unacceptable auto repair. Ms. Colebrook had a car accident and sought repair of the automobile. Neither Ms. Colebrook nor her creditor were satisfied with the repair. Ms. Colebrook had written a check for the repair, but when her creditor indicated that the repair was not satisfactcry, she stopped payment on the check. Again, a criminal case was opened against Ms. Colebrook, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 89-7942, by the auto repair man when Ms. Colebrook stopped payment on the check. When Ms. Colebrook was made aware of the action against her, again, as a result of the incident on March 7, 1989, she made full restitution in open court and nolle pros was entered May 9, 1989. She made the payment to resolve the matter even though she felt the car was not properly repaired. After Mr. Colebrook left Bunche Park on March 7, 1989, Detectives Angelica and Gonzalez arrived at the school to serve Ms. Colebrook with the three arrest warrants. The officers were dressed in plain clothes, went as directly as possible to the principal and did not discuss the matter with other personnel. All matters regarding Ms. Colebrook were discussed in the principal's office, with the door closed. Nonetheless the circumstances surrounding the officers' visit to the school became known by school personnel, other than the ones in attendance at the private meeting. Following her meeting with the officers and her assistant principal, the principal Ruby Johnson telephoned the school Board's Office of Professional standards to report the incident and request direction. She was told that Ms. Colebrook was prohibited from returning to school until she was cleared for return by Dr. Monroe of the Office of Professional standards. Ms. Johnson relayed this message to Ms. Colebrook then she called the school later in the day on March 7, 1989. Ms. Johnson gave Ms. Colebrook Dr. Monroe's office telephone number. Immediately, Ms. Colebrook began to telephone Dr. Monroe's office to gain clearance to return to school. She telephoned, but was only able to leave messages with a secretary. When Ms. Colebrook finally reached Dr. Monroe on March 28, 1989, he set up an appointment to see her on April 11, 1989, over one month after the Bunche Park incident. At Dr. Monroe's suggestion, Ms. Colebrook agreed to bring any and all documents with her which related to the criminal charges against her. On April 11, 1989, Ms. Colebrook met with Dr. Monroe for a formal conference for the record. During the conference, Ms. Colebrook produced receipts for Dr. Monroe's inspection, proving that she had taken significant steps to resolve her difficulties. Dr. Monroe did not find these documents acceptable because they were not, in his opinion, sufficient to satisfy "the legal mandates". The documents which Ms. Colebrook offered in satisfaction of her criminal charges, on less that two weeks notice, were a copy of a cashiers check to the Department of Unemployment in the amount of $2,174 and a receipt for the check from the Florida Department of Labor and Employment security. She also presented a cashier's check for $1,000 payable to the auto repair man. Dr. Monroe expected Ms. Colebrook to bring court disposition documents, although she had no power to compel immediate court review. Further, at this point, Dr. Monroe believed Ms. Colebrook to be a "fleeing felon", upon the representation by principal Ruby Johnson, and had absolutely decided, by the end of the conference, to recommend Ms. Colebrook for termination. Repeatedly, throughout the meeting, Ms. Colebrook reiterated her desire to return to work. Notwithstanding his immediate decision, Dr. Monroe also testified that, if Ms. Colebrook had satisfied the "legal mandates," he would have given her employment status "due consideration". Dr. Monroe, also, gave Ms. Colebrook the reasonable impression that she would be able to go back to work after she paid the last of the restitution required in a criminal case involving the stop payment on the check issued to the auto repair man and that she could return to work after the spring recess. In reliance upon what she believed to be her agreement with Dr. Monroe, Ms. Colebrook promptly resolved the remaining problem and left substantiating documentation with Dr. Monroe's secretary. Dr. Monroe did not receive the documents. Thereafter, she called Ruby Johnson to advise her that she would return to school after the spring break. Again, Ms. Johnson told Ms. Colebrook she could not return to school until Dr. Monroe had sent word to the school site; Ms. Johnson had not received notice of such clearance. Immediately, Ms. Colebrook telephoned Dr. Monroe's office and learned that he was on vacation. She ccntinued to attempt to reach Dr. Monroe until she received notice of her termination, ordered by the School Board of Dade County, pursuant to Dr. Monroe's recommendation, on April 26 1989, and before the final court dates on the three outstanding criminal charges. From 1972 until April of 1989, except for a brief time, Ms. Colebrook continued in the employ of the Dade County Public Schools. Until the Bunche Park incident, she presented the school system with no problems whatsoever, and Was considered to be a valuable asset, in the opinion of her colleagues and a supervisor at Bunche Park Elementary. Ms. Colebrook is a dedicated and valuable employee. She is a credible individual who has suffered some hard times and been a victim of circumstance since she came to the United States. The judicial system has cleared her of all charges and she met Dr. Monroe's "legal mandates" within a reasonable amount of time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the school Board of Dade County, Florida issue a Final Order reinstating Respondent with full back pay and benefits retroactive to April 26, 1989. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th of June, 1990. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2607 The following represents the Hearing Officer's rulings on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact section of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. PETITIONER Rejected as conclusion of law. Adopted in paragraph 1. Adopted, in part, in paragraph 2:; rejected, in part, as not supported by competent substantial evidence. Adopted, in relevant part, in paragraph 5; in part, rejected as not supported by competent substantial evidence. Adopted in paragraph 12. Adopted, in part, in paragraph 12; in part, rejected as not supported by competent substantial evidence. Adopted in relevant part in paragraph 12. Adopted in relevant part in paragraph 12. Adopted in paragraph 12. Adopted, in part, in paragraph 14; in part, rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in paragraph 14. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 15. Adopted in relevant part in paragraph 16. Adopted in paragraph 9. Rejected as not supported by competent substantial evidence. Adopted in paragraph 10. Rejected, in part, as not supported by competent substantial evidence adopted, in part, in paragraph :16. Adopted in paragraph 16. Adopted in paragraph 16. Adopted in paragraph 7. Rejected as not supported by competent substantial evidence. Adopted as subordinate to the findings of fact. Adopted as subordinate to the findings of fact. Adopted as subordinate to the findings of fact. RESPONDENT Adopted in relevant part in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in relevant part in paragraph 5. Adopted in paragraph 5. Adopted in paragraph 25. Adopted in paragraph 6. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 9. Adopted in paragraph 10. Adopted as subordinate to the findings of fact. Adopted in paragraph 11. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 21. Adopted, in part, in paragraph 22; in part, rejected as not supported by competent substantial evidence. Adopted in paragraph 21. Adopted in paragraph 24. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Coral Gables, Florida 33134 Lorraine C. Hoffman, Esquire DuFresne and Bradley 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Paul W. Bell Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of November, 2011.
Findings Of Fact The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant. Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions". The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay. DONE and ENTERED this 7th day of July, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Jesse McCrary, Esquire 3050 Biscayne Blvd., Suite 300 Miami, Florida 33137 Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education The Knott Building Tallahassee, Florida 32301
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
The Issue The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.
Findings Of Fact The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter, Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. James W. Hamilton 505 N.W. 177th Street Apartment 120 Miami, Florida 33169 Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2017.
Findings Of Fact On March 28, 1978, Kenneth Williams submitted application for employment to Duval County School Board (Exhibit 24) in which he acknowledged prior arrest for auto theft in 1968 and indicated he was placed on parole. This application was never signed by Williams but was treated for all purposes, including his employment, as a complete application. Due to administrative error, the normal police name check was not accomplished on this application and Respondent was hired as a science teacher by Duval County school system. On 24 March 1978 Respondent applied to the Florida Department of Education for a teacher's certificate (Exhibit 12). On this application in Item V which inquired if applicant had been arrested, Respondent checked the "Yes" block and on the two lines below he showed the place, date, nature of charge and disposition of the two most serious charges for which Respondent had been arrested and convicted. He there showed a 1968 auto theft and a 1969 robbery. Disposition of both was that he is on parole. At the time this application was approved and issued on 23 May 1978, Petitioner was certainly aware that Respondent had been convicted of at least two felonies. Had inquiry been made to determine Respondent's full criminal record, it would have been disclosed that in 1965 Respondent was found guilty of petty larceny (Exhibit 13) and sentenced to six months; in 1967 he was convicted of two counts of larceny of a motor vehicle (Exhibit 14) and sentenced to seven years imprisonment; in 1969 he was convicted of robbery and sentenced to 25 years confinement to start after the seven-year sentence was terminated (Exhibit 15); that a probation of October 7, 1966, was set aside and Respondent was sentenced to serve six months for resisting an officer (Exhibit 16); that in 1974 Respondent was found to be in violation of Florida's Financial Responsibility Law and fined $25 (Exhibit 17); that in 1975 he was found guilty of attempted petty larceny and sentenced to 60 days, of which 45 were suspended (Exhibit 18); that in 1976 he was charged with battery and the charge was nol- prossed (Exhibit 19); and that in 1976 and 1977 he had three convictions for driving with a suspended license (Exhibits 20, 21 and 22). The three offenses for which Respondent had been sentenced to prison for 25 and seven years, i.e., robbery and two larcenies of vehicles, had been reported. Those not reported carried a total sentence of less than six months in jail. Following Respondent's arrest in 1979 on a charge of battery (Exhibit 19), this was reported to the Duval County school system, security division, with the information that Respondent had a lengthy arrest record. The information was then passed by the security division to the Personnel Department with the recommendation that Respondent not be employed in a position requiring contact with children (Exhibit 26). The information on the arrest record was also passed to the Florida Department of Education for appropriate action. At the time of this arrest, the Respondent was assigned as science teacher at Forrest High School. The battery charge was nol-prossed in 1980. Upon receipt of Respondent's arrest record at the Department of Education, the case was assigned to a staff member for investigation and recommendation. His report (Exhibit 31) states that Respondent does not deny the arrest record and "indeed recorded same in his application for certification." As noted above, Respondent reported the three most serious offenses of which he had been convicted in the space provided on the application form. The fact that arrests for the less serious offenses of petty larceny were not included by Respondent on his application was evidently known and considered by this investigator in reaching his conclusion that the issue of fraudulent application for certification does not arise in this application. At the time Exhibit 31 was prepared, the procedure for processing complaints against teachers was being revised and neither the old system nor the new system was followed to its proper conclusion. As a result no final action was taken by Petitioner on the recommendation of the investigator that no probable cause for disciplinary action existed on the allegation that Williams was unfit to retain his certification. At the time this recommendation was made (and without the prescribed follow-up to a final agency action), Respondent's record, as known by Petitioner, showed Respondent had been paroled in 1973, to remain on probation until 1986; that he enrolled at the University of North Florida and graduated with a BA degree in 1978 with a major in natural science; that he had been teaching with satisfactory evaluations in the Duval County school system for over a year; and that the battery charge stemmed from a domestic dispute. On 31 October 1980 Respondent proceeded to the apartment of his former girlfriend, Shirley Hall, and the mother of his eight-year-old son to take the boy a Halloween costume. When Ms. Hall would not allow the Respondent to see the boy, angry words were exchanged and Respondent departed. He was later seen shortly after midnight, November 1, 1980, in the vicinity of Ms. Hall's car which was parked in a lot near her apartment by both Ms. Hall's mother, who was visiting, and by a neighbor. By mid-morning on November 1, 1980, Ms. Hall became aware that the interior of her car had been burned during the night and she called the police. When she parked the car on the evening of October 31, 1980, Ms. Hall locked the car as she did every time she left the car unattended. Williams, two or three years ago when on friendly relations with Ms. Hall, had been given a key to Ms. Hall's car. No evidence was presented that he had returned the key or that he still had the key. Upon arrival, the police found the car unlocked and two plastic milk cartons of one-gallon capacity inside the car. Both of these cartons contained gasoline and one was melted about one-third away from the top. The physical evidence indicates that one carton with gasoline and rolled paper wick had been placed under the steering wheel and one placed on the back seat of the car. The wicks had been lighted, the door closed and the ensuing flames and smoke had blackened the windows and cause serious damage to the upholstery and overhead of the car. Lack of oxygen in the car caused both fires to become extinguished before enough heat was generated to cause the gas to explode or to blow out the windows. Approximately two days later Respondent was arrested and charged with arson (Exhibit 23). Following a mistrial the case was nol-prossed. This charge against Respondent received publicity in the Jacksonville papers and at least once was reported on TV news. While these charges were pending, Respondent was removed from his position at Forrest High School and assigned to the media center for the duration of that school year. In September 1981 Respondent was assigned to Ribault Junior High School as a science teacher. In March 1982 he received an overall evaluation of satisfactory from his principal at Ribault.
The Issue The consolidated cases present two issues for resolution. For both Respondents, Erica Adams-Brown and Joe Nathan King, the issue presented is whether they should remain suspended without pay pending the disposition of criminal charges that are disqualifying offenses under Section 1012.315, Florida Statutes. The second issue, relating only to Respondent Joe Nathan King, is whether there is just cause for his suspension without pay for five days based upon allegations of misconduct.
Findings Of Fact Petitioner, Escambia County School Board, is a duly-constituted school board charged with the duties of operating, controlling, and supervising all free public schools within the School District of Escambia County, Florida. Petitioner has the authority to discipline employees pursuant to Subsection 1012.22(1)(f), Florida Statutes. Petitioner has implemented the Ethics in Education Act (the "Act"), as passed by the Florida Legislature effective July 1, 2008. Under the Act, multiple enumerated offenses constitute "disqualifying offenses" from employment in a position requiring contact with students. Among the disqualifying offenses is the offense of battery when the victim is a minor. Petitioner has implemented the Act by suspending without pay, instructional personnel who are charged with disqualifying criminal offenses under Section 1012.315, Florida Statutes. While that provision does not disqualify a teacher unless convicted or found to have committed the criminal offense, Petitioner finds it appropriate to suspend teachers without pay pending the final disposition of disqualifying criminal charges. Petitioner does not suspend teachers with pay pending the disposition of criminal charges because of the inability to recover compensation paid for services not provided in the event the teacher is convicted or found to have committed the offense. Petitioner does provide full restoration of back pay and benefits in the event teachers who are suspended without pay pending the disposition of criminal charges are exonerated of those charges. When a teacher is accused of striking a student, both the Department of Children and Family Services, as well as the school resource officer are informed. If a criminal investigation is warranted, a school resource officer from another school conducts the investigation in order to avoid a conflict of interest. Respondent Joe Nathan King has been employed as a teacher with Petitioner since 1974. At all times material to this proceeding, Mr. King taught mathematics classes under a professional services contract at Woodham Middle School and coached basketball. Mr. King was charged with striking a student and causing injuries. The Superintendent of Schools recommended to Petitioner that Mr. King be suspended without pay for five days. Between sixth and seventh period classes on March 16, 2009, Mr. King was on hall-duty, as was usual. Based upon a surveillance camera (employing two frames per second intervals rather than continuous video) mounted in the hallway, a student, later identified as A.D. (the student's initials will be used to protect the student's identity) was seen to have struck Mr. King from behind, causing his eyeglasses to fall from his head and scatter down the hall by the lockers. After being struck from behind by A.D., Mr. King testified that he reflexively reached back and grabbed A.D. to prevent further contact and to restrain him. Mr. King also appeared to push A.D. away from him. Once A.D. was restrained and the situation defused, Mr. King told A.D. to go to class. A.D. complied. Four different teachers witnessed at least part of the confrontation between Mr. King and A.D. Ms. Christy Wilcox was in the hallway about 10-15 feet away from Mr. King. She described in a statement that she saw Mr. King strike A.D. about the head and neck. She did not see the original altercation that led to Mr. King striking A.D. Ms. Whitney Meadows, a teacher, also witnessed the March 16 event. She saw two boys run out of Ms. Read's room and run into Mr. King, knocking his glasses off. She then saw an altercation involving pushing and shoving. Ms. Mary Catherine Coyle is another teacher who witnessed the March 16 event. She was standing at the doorway of Ms. Read's and Ms. Meadows' classroom. She witnessed a student striking Mr. King from behind. She saw Mr. King turn around and strike the student with his left hand. Ms. Denisha Read, a teacher, also witnessed the events of March 16. She heard Mr. King make a comment about his glasses. She heard a student say words to the effect of "it was not me." She saw Mr. King strike the student near the shoulder area with a "closed fist." She described the student as being "very upset." She tried to calm the student who was crying. She reported the matter to the principal. The video images from the camera that recorded the incident, are consistent with a composite version of the four teacher witnesses to the event. Mr. King appears to have been struck from behind by a young student, identified as A.D., knocking his eyeglasses to the floor. Mr. King then acted reflexively to defend himself and first pushed A.D. away, then grabbed him by the arm and had words with him. A.D. then went into Ms. Read's classroom, his seventh period class. After the incident, A.D. left Ms. Read's classroom and was seen standing alone in the video by the student lockers. Ms. Read took him a tissue because he was crying, then went to report the matter to the principal. The video tape offered into evidence does not show Mr. King striking A.D. with either an open or a closed fist. Mr. King appears to be pushing A.D. away from him after the contact that knocked his glasses off his head. Mr. King had been subject to a written reprimand in 1993 for slapping a student, which he denied at the time. No other evidence of disciplinary action taken by Petitioner against Mr. King during the course of his teaching career was offered at hearing. Mr. King acknowledged that he was arrested on March 24, 2009, and charged with a criminal offense of battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes, and that the charge remained pending at the time of the hearing on October 5 and 6, 2009. He did not have a date for its resolution at the time of the hearing. Mr. King was suspended without pay on June 22, 2009. He was still under suspension without pay at the time of the hearing in October. Mr. King testified that he got along reasonably well with the teachers who testified that he struck a student. He was not aware of any reason why the teachers would testify untruthfully regarding his actions on March 16, 2009. At all times material to this proceeding, Respondent Erica Adams-Brown taught reading classes under a professional services contract at Woodham Middle School. Ms. Adams-Brown was accused of striking student J.M. and causing injuries after her seventh period class on April 3, 2009, the day before the start of spring break. On April 3, 2009, the principal of Woodham Middle School, Marsha Higgins, was called at home and notified of allegations that Ms. Adams-Brown had struck a student. Ms. Higgins returned to school and met with the parents of the child who was allegedly struck. A pre-disciplinary meeting was held with Ms. Adams- Brown in attendance. Petitioner investigated the matter along with Ms. Higgins and concluded sufficient evidence did not exist to discipline Ms. Adams-Brown. She was authorized to return to the classroom with pay pending Petitioner's investigation on April 7, 2009. However, Ms. Adams-Brown was contacted at home during spring break and was informed she would not be allowed to return to her classroom to teach after the break, but would be reassigned with pay. Ms. Adams-Brown was informed of a proposed disciplinary action by Petitioner on April 23, 2009. Petitioner concluded its investigation on April 29, 2009, and found the allegations of battery on a student to be unfounded. On April 30, 2009, Ms. Adams-Brown was arrested and charged with battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes. Ms. Higgins played no role in Ms. Adams-Brown being charged with a crime by the Office of the State Attorney. Ms. Adams-Brown was reassigned with pay on that date pending the outcome of the law enforcement investigation and criminal charges. Ms. Adams-Brown was suspended without pay pending disposition of the criminal charges on July 22, 2009. Ms. Adams-Brown remained under suspension without pay as of the date of the hearing. She did not know when the criminal matter would be resolved. Ms. Adams-Brown believed that Mr. King's and her suspensions were racially motivated. She and several other teachers, including a teachers' union representative met with Assistant School Superintendent Dr. Alan Scott on April 29, 2009, to discuss these allegations of racial discrimination. The testimony at hearing concerning the substance of the April 29, 2009, meeting with School District officials did not support a claim of racial discrimination or disparate treatment as the basis for Petitioner's role in the incidents involving Mr. King and Ms. Adams-Brown. Petitioner has consistently implemented its policy of suspending teachers without pay pending the disposition of criminal charges. No exceptions have been made. Of the six teachers identified by Dr. Scott who were suspended by Petitioner since July 21, 2008, on the basis of pending criminal charges for disqualifying offenses, all were suspended without pay. Concerning the issue of race, three of those suspended were white and three were African-American. Ms. Adams-Brown testified she was not aware of other teachers who were charged with disqualifying criminal offenses who were not suspended without pay pending the disposition of those charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order affirming the suspension without pay of Respondents pending the disposition of disqualifying criminal charges, and the suspension without pay of Respondent, Joe Nathan King, for five days for engaging in misconduct, including striking a student. DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of December, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Longoria, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Christine C. Hardin, Esquire 3 West Garden Street, Suite 204 Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Malcolm Thomas, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502
