The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. 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 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
Findings Of Fact Respondent holds Florida teaching certificate 066623, covering the areas of Elementary Education, Junior College, Reading, Early Childhood Education and Administration and Supervision. She has earned a bachelor's and master's degree, and a doctorate. Until her suspension in August, 1982, she served as Principal of West Riviera Elementary School ("West Riviera") in the Palm Beach County School District. On January 24, 1983, a final order was entered by the Palm Beach County School Board dismissing her from her employment and cancelling her continuing contract with the district. During Respondent's tenure as Principal at West Riviera, (1973-1982) it was her policy to maintain and rigorously enforce strict discipline, or as she put it, "law and order." Her approach to maintaining "law and order" is illustrated by the following events. When Marie Rusch joined West Riviera as a substitute Kindergarten teacher in October of 1979, Respondent explained that she wanted Ms. Rusch to maintain law and order in the school: "I don't care if these children learn nothing, I want law and order." Ms. Rusch was surprised by Respondent's attitude, particularly with regard to kindergarten children. This was Ms. Rusch's first opportunity to teach in a public school. During a conference in 1973 with Nancy Pullam, (another kindergarten teacher) regarding student behavior, Respondent gave Ms. Pullam two or more rulers taped together with masking tape and told "her beat them and they will learn." Respondent passed out 18" rulers to each member of the teaching staff at West Riviera and told them that she expected them to use the rulers in administering corporal punishment. Until on or about May 7, 1980, Respondent permitted teachers to administer corporal punishment in their classrooms, contrary to Palm Beach County School Board Policy 5.18(9). She permitted teachers to administer corporal punishment for any type of misbehavior until she changed that policy on or about March 12, 1982. At that time, she advised her faculty that corporal punishment was to be administered only for fighting and foul language. Prior to March 12, 1982, Respondent failed to set any guidelines for the faculty at West Riviera concerning offenses or infractions for which corporal punishment was authorized. In her view, the only "offense" which did not warrant corporal punishment was the failure of a student to do his assigned classwork. The only alternatives to corporal punishment utilized at West Riviera were suspension from school or deprivation of a fun activity (including depriving a student of physical education or use of the library). If a child would not accept paddling, it was Respondent's policy that the student be automatically suspended for a period of five days. Respondent constantly emphasized her philosophy of strict law and order through her use of the expression "Your behind is mine," meaning that if a child misbehaved he or she would receive a paddling. Respondent repeatedly used this expression in addressing children, faculty and staff, both personally and over the school's public address system. Respondent's manner of administering West Riviera created a fearful and military-like atmosphere. She often told teachers that she wanted it so quiet in faculty meetings, and in classrooms, that she could "hear a rat piss on cotton." When Marjorie Russo was hired to teach third grade, Respondent told her that corporal punishment used at West Riviera. Respondent told the faculty at the beginning of each school year that they each had a paddle, and she expected them to keep law and order. It they didn't, they would be "blackballed" in the county. Respondent told substitute teachers that her primary concern was that they maintain law and order, that she didn't care whether the substitute taught the children anything. Dr. Howard Levarity, Assistant Principal at West Riviera, became concerned about the extent to which corporal punishment was utilized under Respondent's administration. He was so concerned that he tried to transfer to another school. He observed occasions when children were corporally punished without good reason. At West Riviera, teachers were given great latitude in administering corporal punishment so that "law and order" - as defined by respondent - could be maintained. As a result of Respondent's policies regarding the use of corporal punishment, there were 3,246 separate instances in which students were administered corporal punishment during the 1979-1980 school year. A total of 451 students (78% of the school's students, ranging in number from 576 to 607) received corporal punishment during that school year. During the 1980-1981 school year, there were 1,176 instances in which corporal punishment was administered to students. Out of a school population of 550 students, 290 (52.8%) received corporal punishment during that year. During the 1981-1982 school year, there were 560 separate instances of corporal punishment. Out of a school population of 537, 214 students (40.9%) received corporal punishment during that year. Although most of these punishments were not administered in Respondent's presence, their frequency was a direct result of her policy to encourage - even insist - that corporal punishment be applied to maintain law and order. During the 1979-1980 school year, fourth grade student Greg Aronson was corporally punished 59 times. Greg's mother was never notified by the school that he received corporal punishment on 70 different occasions. Second grade student Sterling DeShields received corporal punishment on 45 occasions. Fourth grade student Robert Duguette received corporal punishment on 61 occasions. Fourth grade student Steve Geck received corporal punishment on 43 occasions. Sixth grade student Thomas Gradison received corporal punishment on 48 occasions, four of which occurred within a one hour period of time on October 25, 1979. In each instance, Thomas received the maximum of 5 strokes, for a total of 20 strokes within one hour. Fourth grade student Keith Griffin received corporal punishment on 52 occasions. Lucius Jackson, a fifth grade student, received corporal punishment on 44 occasions, three of which occurred during the morning of December 6, 1979. In each of his 44 paddling, Lucius received the maximum of 5 strokes. Fourth grade student Mark Nunnally received corporal punishment on 41 occasions. David Pender, a fourth grade student, received corporal punishment 58 occasions. Second grade student Cameron Walker received corporal punishment on 38 occasions, with Respondent administering 17 of the paddling. Fourth grade student Elinor Williams received 34 paddling. Kindergarten student Leonard Williams received 31 paddling, three of which occurred within one and one-half hours on the morning of September 18, 1979. (Petitioner's Exhibit 2) During the 1980-1981 school year, Greg Aronson received another 8 paddling, but again his parents were never notified. Lucius Jackson was corporally punished on 55 occasions. Lucius received 4 paddling on February 11, 1981, totaling 20 strokes. Fourth grade student Rufus Mitchell was administered corporal punishment on 25 occasions, two of which were eight minutes apart on October 15, 1980. Rufus received the maximum of 5 strokes during each of these paddling. Fourth grade student Lendrick McGrady was paddled 30 times. Sixth grade student Mark Oats received corporal punishment on 30 occasions. Sixth grade student Kenneth Studstill received corporal punishment on 28 occasions. Sixth grade student Hurie Whitfield received corporal punishment on 26 occasions. (Petitioner's Exhibit 2) Although Respondent admitted that corporal punishment was ineffective for Lucius Jackson, he was paddled 44 times during the 1979-1980 school year, 55 times during the 1980-1981 school year. Respondent witnessed each of the 4 paddling which Lucius received on May 8, 1981, near the end of that school year. Although student William Dinkins was administered corporal punishment in 1979-1980, 1980-1981, 1981-1982 school years, his mother was never notified of the punishment, contrary to Administrative Directive D-5.35(9) of the Palm Beach County School Board. Respondent used excessive and unreasonable force on numerous occasions when she personally administered corporal punishment to elementary school students at West Riviera. Many times, she interrupted paddling which were being administered by teacher. She would take the paddle from the teacher and administer the punishment herself, because the teacher, in her view, was not striking the child hard enough. On one occasion, Respondent interrupted teacher Vickie Culton and took over the paddling because Ms. Culton was not hitting the child hard enough. When the child pulled away, Respondent followed him around the room, striking him repeatedly. The child received more than the maximum 5 strokes allowable under school board policy. In paddling another kindergarten child named Theron, Respondent pushed his head against a wall, causing him to scream and cry to such an extent that teachers stuck their heads into the hall to see what was happening. On another occasion, Respondent took Theron into a bathroom and paddled him while his classmates and teacher listened in the adjacent classroom. Respondent had just paddled Theron in her office and brought him back to the classroom. Since he continued to scream and cry, she administered the second paddling in the bathroom. Respondent interrupted Ms. Culton's paddling several times because Respondent felt she was not hitting the child hard enough. Teacher Joyce Wojtowicz had the same experience. On one occasion, she was paddling a third grade student named Carol, while Respondent observed a as a witness. Respondent interrupted the paddling and proceeded to give the girl a severe paddling, administering five strokes. In the meantime, another third grade student, Tammy was standing nearby watching. When Respondent finished paddling Carol, Tammy was shaking violently; terrified, she began to vomit. Ms. Wojtowicz was also shaken by the severity of the paddling. Respondent gave some tissue to Tammy, ordered her to clean up the vomit, and told her that she was not going to avoid paddling by throwing up. After cleaning up the vomit, Respondent paddled Tammy, giving her the maximum 5 strokes. On another occasion, Ms. Wojtowicz overheard Respondent administering corporal punishment to a child in the school clinic. As Respondent hit the child with the paddle, Ms. Wojtowicz heard Respondent say, "Are you going to piss on my carpet?" As the child was given another stroke, Respondent said, "Are you going to pee on my floor?" As Ms. Wojtowicz walked out of the bathroom, she saw that Respondent was paddling a small kindergarten child. With each stroke, the child's feet went out from under him. Another teacher, Leslie Smith, witnessed Respondent paddle a five year old kindergarten boy. Respondent hit the boy very hard on the first stroke causing him to fall on the floor, then struck him two or three times while he was on the floor. Another teacher, Marcie Ann Wolfe, sent a student with an emotional problem to the office for the purpose of having Respondent talk to him. Instead, the student returned with a disciplinary slip indicating that Respondent had paddled him. At that point, Ms. Wolfe resolved that she would no longer send students to the office for discipline. Teacher Lynne McDowell witnessed Respondent administer corporal punishment to third grade student Craig Griffin. Craig had never been paddled at school before, and he resisted Ms. McDowell's attempt to paddle him in the office. Respondent intervened, took the paddle from Ms. McDowell, and administered the paddling to Craig, striking him wherever the blows fell -- on his legs and hands. Ms. McDowell observed Respondent administer a severe paddling to another student, Shawn, with the strokes landing so hard that it "rang my ears." If a child moved or fidgeted while Respondent was paddling them, she would start over. Third grade teacher Marjorie Russo observed Respondent paddle a kindergarten or first grade boy so hard that he came up off the floor. The little boy managed to get away from Respondent and tried to go under her desk. Respondent kept hitting him while he was on the floor. In Ms. Russo's view, Respondent hit the child "ridiculously hard" for a boy that size. Kindergarten teacher Mary Rudin witnessed Respondent administer corporal punishment to kindergarten student James J. Martin in her class and in the presence of other students. Ms. Rudin had asked James to make some circles on a piece of paper, but he refused. So, Ms. Rudin asked Respondent to come to her class in an effort to get James to cooperate. Respondent then asked James to perform the task; again he refused. At that point, Respondent administered five strokes to James. She sat him down and again requested that he perform the task. Once again he refused, and once again, she stood him up and gave him five more strokes. She then made a third request for him to perform the task; he responded, "I'll do it if you get away from me." This angered Respondent. She picked him up again and paddled him a third time. After the third paddling, James performed the task. He never returned to his class after that day because he was withdrawn from school by his parents. His father, James Martin, a teacher at Suncoast High School removed James because of the severity of the paddling. Photographs taken two days after the paddling show pronounced red marks from the to of his buttocks half way down his legs to hi knees. When Mr. Martin and his wife first observed the marks, they called their doctor, who agreed to see them that evening. The doctor was shocked by what he saw, and advised that he would have to report the case as an incident of child abuse. He recommended that Mr. Martin consult an attorney. Mr. Martin spoke to Respondent the following day. She apologized, explaining that she "lost her cool." Mr. Martin went to James' classroom to get his belongings; however, James would not go inside. He remained outside in the hallway, visibly shaken. In addition to Mr. Martin, Barbara Wright and Betty Deurloo complained to the school about their children being subjected to excessive punishment. Like Mr. Martin, Ms. Wright and Ms. Deurloo removed their children from West Riviera. In Respondent's view, if a student constantly wet his pants, it was an offense warranting corporal punishment. Although Respondent testified that the only "offense" that did not justify corporal punishment was when a child refused to do his or her lesson, the testimony of Ms. Rudin and Mr. Martin indicates that Respondent did not follow her own guideline. On numerous occasions, Respondent used profanity and made inappropriate, improper, and unprofessional remarks to students at West Riviera. After paddling a student named Lawrence in her office on April 14, 1982, Respondent told Lawrence to sit down. She pointed to a heater cord and threatened to tie him up with the heater cord if he didn't sit still. Respondent told Leslie Smith's kindergarten class that if they didn't shut up she would "kick their butts through the ceiling and kill them all." Respondent referred to a female student in Ms. Wojtowicz's class named Carolyn as a "thug." Respondent told Janet Zendel's first grade students who were line up to go to the bathroom, "If you've got to piss, piss, but there's not going to be no line." Respondent asked one of Mary Rudin's kindergarten students, "What are you looking at me for? Do I have piss all over my face?" She used a loud and sarcastic tone of voice. On another occasion when a child apparently urinated in a stairwell, Respondent announced over the public address system at the school, in a loud, angry voice, "Someone peed in my stairwell. When I find out who it is, I am going to beat you bloody, bloody, bloody." Respondent repeated this several times, reiterating that when she found out who the offender was, she would beat them "bloody, bloody, bloody." Respondent also used profanity in addressing members of the faculty and staff at West Riviera. She often told faculty members, "Get your shit together," and "I want it so quiet that I can hear a rat piss on cotton." Respondent commented to Jill Proce that she wanted Ms. Proce to take her paycheck and "buy some damn pants." During the first faculty meeting of the 1981-1982 school year, Respondent discussed the possibility of angry parents using profanity toward teachers. Respondent made a remark to the effect that teachers might even be called "mother fuckers." Respondent then defined the term mother fucker, and asked a faculty member, "How do you know I didn't fuck my mother?" Teacher Roma Smith heard Respondent use profane words such as fuck, shit, piss and mother fucker, in faculty meetings at West Riviera. After accusing teacher Mary Rudin of being insubordinate for not setting up tables in the hallway for registration, Respondent told Ms. Rudin, "do you see that doorway there? Don't let it hit you on the ass on your way out, if you don't like it here at West Riviera." At a preschool meeting before the commencement of the 1975-1976 school year Respondent presided over a faculty meeting wearing a T-shirt with a picture of excrement on it and the caption, "Get your shit together." Respondent used improper, inappropriate and unprofessional language in addressing faculty members at West Riviera. AT the end of Jill Proce's first day as a teacher at West Riviera, Respondent called Ms. Proce into her office, pulled her (Respondent's) pants up tight between her legs and told Ms. Proce, "This is the way you look with the lips of your vagina hanging out." Respondent asked Ms. Proce what she was trying to do to the fourth grade boys, if she was trying to give them some ideas. Respondent then proceeded to tell Ms. Proce that if Respondent was a parent and she walked into Ms. Proce's classroom, she would think that her child was being taught by a prostitute. Ms. Proce's pants were not too tight, and she was dressed appropriately for an elementary school teacher. At the beginning of each year, Respondent issued handbooks to her teachers, with instructions that they had a paddle and respondent expected them to keep law and order. If they did not keep law and order, Respondent told them they could be "blackballed" in the county. After Respondent walked in Ms. McDowell's classroom one day and found the students noisy and disorganized, she told Ms. McDowell in a conference that Respondent had friends in high places; that if she did not shape up, she would have her blackballed in Palm Beach County and she would never teach there again. After buying new clothes in an effort to meet Respondent's criticisms regarding her attire, Ms. Proce approached Respondent one day and asked her if the clothes she was wearing were suitable. Respondent answered by saying that Ms. Proce wasn't there to suit her, she was there to suit her job, and if she didn't like it she could be blackballed of Palm Beach County. On another occasion, Respondent yelled at teacher Joyce Washington in front of Ms. Washington's class, accusing her of losing a student's medical form. Ms. Washington had not lost the student's medical form. Respondent told her if she could not get her act together, that she was going to lose her job, which she spelled out "J...O...B." During the 1981-1982 school year, primary resource teacher Patsy McClain received a telephone call from Respondent, who at the time was admitted to the Palm Beach Gardens Hospital. Respondent asked Ms. McClain to bring two students to the hospital for the purpose of braiding Respondent's hair. After getting the Assistant Principal's permission, Ms. McClain selected two girls, Elinor Williams and Jamilia Dailey. After getting permission from their parents, she drove them to Palm Beach Gardens Hospital. The girls were taken out of school in mid-morning and were gone approximately two hours. AT the hospital, they braided Respondent's hair. In November 1980, Respondent approached teacher Joyce Washington during an open house at West Riviera and instructed Ms. Washington to change student Joshua Logan's grades to all "S's." Ms. Washington had previously prepared her report cards, and had issued several "U's," indicating unsatisfactory, to Joshua. Respondent told Ms. Washington to change his grades to "S's" and to give Joshua all "S's," indicating satisfactory, on his report card for the remainder of the year. The reason given was that she did not want any more hassles from the child's parents. Although in Ms. Washington's opinion Joshua's work did not warrant all "S's," she nevertheless gave the child "S's" for the remainder of the school year. When the other students in Ms. Washington's class learned of Joshua's new grades, their grades started going down. Many teachers were frightened by Respondent and taught in an oppressive atmosphere of tension and intimidation. Jill Proce had begun to look for other employment in another county. Music could not be taught except at Christmas. Music books and instruments were removed from the classrooms. So were record players. Crayons were removed out of fear that students would get crayon marks on the floors. Joyce Washington intended to seek a transfer, but volunteered to leave West Riviera when an opening occurred elsewhere. Assistant Principal Levarity tried to get a transfer because of Respondent's heaving reliance on corporal punishment. During the fall of 1979, Fran Gill, North Area Superintendent for the Palm Beach County School District, spoke to Respondent about administration of corporal punishment at West Riviera. Ms. Gill had been advised that teachers were administering corporal punishment to student sin the classroom, in violation of school board policy and administrative directive. During that meeting, Ms. Gill explained to Respondent that she must follow the school board's Administrative Directive D5.35 and gave Respondent a copy. Among other things, this directive required that the Principal or his/her administrative designee must, in ever case, determine the necessity for corporal punishment and, in ever case, designate the time, place and member of the instructional staff who will administer the punishment. In addition, the directive provided that no teacher may be required to administer corporal punishment. Notwithstanding Ms. Gill's directive to comply with Administrative Directive D5.35, Respondent continued to require teachers to administer corporal punishment to students in the classroom in order to maintain law and order at West Riviera. When Ms. Gill again became aware in May 1980 of Respondent's noncompliance with the directive, she called her and asked whether students were still being paddled in the classroom. Respondent indicated that she was still permitting students to be paddled in the classroom by teachers. This conversation occurred on May 6, 1980. ON May 8, 1980, Ms. Gill confirmed their conversation in a written memorandum to Respondent, emphasizing her prior verbal instructions. In March of 1982, Ms. Gill again met with Respondent regarding concerns expressed to her by parents. Ms. Gill found that the directive was not being followed, and that the only change which had been made was that children were being brought to the office to be paddled. The teachers were still exercising their discretion as to whether or not corporal punishment would be administered, and parents were not being contacted beforehand. Ms. Gill expressed her concern to Respondent regarding her failure to follow the school board's administrative directive. Respondent sent a letter to Ms. Gill, date March 12, 1982, in response to Ms. Gill's concerns. In her letter, Respondent states, "I held a faculty meeting this morning and explained to teachers that we will no longer paddle students for every misbehavior." As a result of Respondent's failure to follow her specific instructions concerning adherence to school board policy and administrative directives relating to administration of corporal punishment, Ms. Gill prepared a list of fourteen specific questions for Respondent to answer regarding corporal punishment at West Riviera. Respondent received the written questions on March 18, 1982, and furnished her written responses on March 31, 1982. Respondent provided false answers to these questions. In response to question one, Respondent falsely stated that in each instance of inappropriate behavior the teacher brought the student to the office and conferred with the Principal or Assistant Principal prior to utilizing corporal punishment. In response to question three, Respondent falsely indicated that teachers were not required to paddle students. In response to question six, Respondent falsely indicated that whenever a student received corporal punishment for the first or second time, a copy of the student discipline referral slip was sent to their parents. In response to question seven, Respondent indicated that the alternatives to corporal punishment were in-house suspension or suspension from school, when in fact the alternatives utilized at West Riviera included depriving the student of attending physical education or utilizing the library. In response to question eleven, Respondent failed to indicate that alternative types of punishment included depriving the student of physical education or use of the library. In response to question thirteen concerning changes made in the administration of corporal punishment within the past three years, Respondent replied that she had complied with Ms. Gill's instructions on May 6, 1980, to refrain from allowing teachers to paddle students in their classroom. In fact, Respondent continued to permit teachers to determine whether corporal punishment was appropriate and to administer it at their discretion. Although Respondent testified that failing to do one's school work did not warrant corporal punishment, Respondent administered three consecutive paddling to kindergarten student J.J. Martin for failing to do a handwriting lesson. Although Respondent changed her policy in March, 1982 by restricting the use of corporal punishment to cases of fighting or foul language, she later administered corporal punishment to one of Ms. Wolfe's students for misbehaving in her class. Ms. Wolfe had specifically requested that Respondent talk to the student, not paddle him. Respondent admits that she did not follow Administrative Directive D5.35 prior to May 7, 1980. Yet Fran Gill had specifically directed her to comply with that directive and school board policy concerning corporal punishment in the Fall of 1979. Respondent failed to prepare guidelines for administering corporal punishment at West Riviera which identified the types of punishable offenses, the conditions under which the punishment would be administered and the specific personnel on the school staff authorized to administer the punishment, contrary to Section 232.27(1), Florida Statutes. Respondent ridiculed and humiliated children by paddling them in their classrooms in the presence of their classmates on several occasions, contrary to Administrative Directive D5.35(4). She used profane and abusive language with them. In the professional opinion of Kenneth Schrimsher, Assistant Superintendent for Personnel Relations with the Palm Beach School Board, the number of incidents of corporal punishment administered at West Riviera during the 1979-1980 school year was excessive. In his view, Respondent's effectiveness as an employee of the school board has been seriously reduced. His opinion is credible and accepted as persuasive. Despite the atmosphere of fear and intimidation that prevailed at West Riviera during Respondent's tenure, student achievement on standardized tests improved dramatically. When she arrived at West Riviera, it was among the five worst schools in the county, rated by test scores; when she left in 1982, it was among the top five, out of a total of more than 50 elementary schools. Her methods also caused West Riviera to become one of the cleanest and best maintained elementary schools in the county. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's teaching certificate be revoked for five (5) years (with opportunity for reapplication) for violation of Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code. DONE and RECOMMENDED this 1st day of May, 1984, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 1st day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 William M. Holland, Esquire 605 Clematis Street Post Office Box 2648 West Palm Beach, Florida 33402-2648 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact At all times material to this case, Respondent Carl B. Dietz (Dietz) was employed as a member of the instructional staff of Trafalgar Middle School, Lee County School District (District) pursuant to a professional service contract. Throughout Dietz's employment with the District, his annual evaluations indicate that the quality of his work was deemed an "effective level of performance". Dietz was initially employed by the District as a regular teacher on August 15, 1985. Dietz holds Florida Teaching Certificate #543771 issued by the Florida Department of Education. He is certified to teach secondary-level history and junior high school mathematics. For six years prior to the 1991-92 school year, Dietz taught advanced level American history and math at Cypress Lakes High School. Most of Dietz's students at Cypress Lakes were approximately 16-18 years old. A decrease in enrollment at Cypress Lakes resulted in a reduction of teaching staff at Cypress Lakes. Because no other high school instructional positions were open, Dietz was offered and accepted a position at Trafalgar Middle School. During the 1991-92 school year, Dietz taught history to Trafalgar eighth graders. During the school year 1992-93, Dietz was assigned teaching responsibilities for the Trafalgar Middle School sixth grade PASS program math and social studies classes. The PASS (Pupils Achieving School Success) program is a state funded project developed to focus specific attention on students identified as at risk of withdrawal from school prior to high school graduation. Dietz had no previous experience as an instructor in a PASS program. Dietz received no special training for the PASS program. The sixth grade students in the PASS program were approximately 11-12 years old. The nature of the PASS program may result in students who are less disciplined and more disruptive than the students Dietz had previously taught. Dietz taught two PASS classes, a morning group and an afternoon group. Students from both classes testified during the hearing. Conflicts in testimony have been resolved as indicated in the following Findings of Fact. It is alleged that on one day in October, 1992, Dietz, yanked a chair from under a student, resulting in the student's head striking the desk as he fell to the floor. The evidence establishes that the student was sitting sideways in the chair and was rocking back on the rear legs of the chair. Dietz grabbed the seatback and the chair slid from under the student who fell to the floor. The greater weight of the evidence is insufficient to establish that the student struck his head during the fall. In any event, the student was not physically injured in the incident. Dietz asserted that the student had been previously warned about sitting improperly, and that he grabbed the seatback to startle the child and "make the point" that he should sit properly. There is no evidence that the action of Dietz was an appropriate manner in which to discipline the child for sitting incorrectly in the chair. It is alleged that in October, 1992, Dietz addressed a child (whose pronunciation of his first name was poor) by a mispronunciation of the child's name as a means of encouraging the child to pronounce the name correctly. Upon requesting Dietz to correctly pronounce the name, Dietz discontinued his practice. The evidence fails to establish that the child was harmed by the mispronunciation of his name. In October, 1992, Dietz removed a non-functioning clock from the classroom wall and threw it down. The battery came out of the clock and struck a female student's leg, but no injury resulted. The allegation that Dietz's removal of the clock was accompanied by a remark that the "piece of shit" clock was not working is not supported by the greater weight of credible evidence. It is alleged that Dietz threw a pencil and book at one student who came to class without materials. The greater weight of the evidence establishes that Dietz slammed a book down on the table in front of the student, who was being seated away from class as a disciplinary measure. The evidence also establishes that Dietz tossed a pencil to the child. The evidence fails to indicate that tossing a pencil to a sixth grade child is an appropriate method of distributing school supplies. The pencil would have hit the child had he not moved from the path of the projectile, however the evidence does not establish any intent to injure the child by Dietz. In October, 1992, four female students from Dietz's afternoon class locked themselves in a bathroom stall during a rest room break and remained there when the break ended. Standing in the school hallway, Dietz reached into the bathroom, knocked on the stall door and directed the female students to return to class. It is alleged that upon exiting the bathroom, Dietz addressed the students as "lesbians," "perverts" and "gaywads." The greater weight of the evidence fails to establish that Dietz used such language in the presence of the female students or that his action in directing the students to return to class was inappropriate. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words and phrases: "nigger," "nigger shit," and "nigger talk," and instructed one student to "take your black ass back to Africa." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words: "ass," "assholes," "shit," "hell," "fucking assholes," and "fucking jerks." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that on one occasion at the end of the class session during the 1992-93 school year, Dietz instructed a student in the completed class to get his "fat ass" out of the classroom. There was testimony that Dietz directed the student to get his "fat carcass" out of the classroom. While the greater weight of the credible and persuasive evidence establishes that Dietz indeed addressed the child as "fat", it is insufficient to establish that Dietz used the word "ass" in the presence of the child. The evidence fails to establish that use of the descriptive word "fat" resulted in injury to the child. It is alleged that in October, 1992, Dietz threw a plastic cup at a student. The evidence fails to support the allegation. It is alleged that in October, 1992, Dietz threatened to tell the mother of a student that the child was "a big fat lump of nothing." The evidence fails to support the allegation. In October, 1992, a student inquired of Dietz as to whether he believed the students in the class were "brats." Dietz replied in the affirmative. The student then asked if Dietz thought the inquiring student was a "brat." Dietz again replied in the affirmative. It is alleged that Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his car. It is alleged that on the day questioned about the gun, Dietz admitted having the gun in the car. The evidence fails to establish that, on the day questioned, Dietz (who owned several vehicles) had the gun in the glove box of the car driven. However, the evidence establishes that, on at least one occasion, Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his vehicle. The all times material to this case, there was no written School Board policy prohibiting a loaded and cased weapon from being on the school grounds locked in a vehicle glove box. There were no oral directives to faculty that a loaded and cased weapon, locked in a vehicle glove box, was prohibited from school grounds. At one time in the Spring of 1992, the school principal brought a firearm onto school grounds, the thereafter loaded and fired the weapon as part of a demonstration. The District's assertion that the related alleged violation of federal law is sufficient to support termination is rejected. On October 28, 1992, a number of Dietz's students went to the office of a school guidance counselor and voiced a number of complaints about alleged conduct. The counselor noted the complaints and reported the matter to the assistant principal of the school. On October 29, 1992, the assistant principal met with Dietz to discuss the allegations. According to the assistant principal, Dietz admitted to the alleged behaviors, except for one specific accusation regarding addressing a specific student as a "fucking ass." According to Dietz, he did not admit that such behaviors occurred and instead asserts that he attempted to explain some of the reasons for the allegations, including the grades assigned to some of the complaining students. The conflict in recollections is reconciled in favor of Dietz. On October 30, 1992, Dietz met with the principal of the school, during which time Dietz admitted that he had previously stored a loaded and cased handgun in the glove box of one of the vehicles he drove onto school grounds. On October 30, 1992, Dietz was suspended with pay based on the allegations of improper conduct. In November, 1992, an employee of the superintendent of the Lee County school district undertook an investigation of the allegations regarding Dietz. On November 10, 1992, a predetermination conference was held. On November 13, 1992, Dietz was advised that on November 17, 1992, the district superintendant would recommend to the school board that Dietz be suspended without pay and benefits pending termination of employment. Effective November 17, 1992, the board elected to suspend Dietz without pay and benefits. Dietz was notified of the board action by letter dated November 25, 1993. The letter provided that Dietz could request a formal administrative hearing on the matter. By letter dated November 19, 1992, Dietz requested formal hearing of the board's November 17 action.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School District of Lee County enter a Final Order reinstating the employment of Carl B. Dietz and providing for back pay and benefits retroactive to November 17, 1992. DONE and RECOMMENDED this 27th day of July, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7075 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8. Rejected, immaterial. Rejected, not supported by greater weight of credible and persuasive evidence. Rejected. The rest room discussion is irrelevant. The greater weight of credible and persuasive evidence fails to establish that the chair was "yanked" from under the student or that the student struck his head. The alleged lack of an apology is irrelevant. Rejected as to Dietz interaction with Mr. Nolan, irrelevant. Rejected, as to the discussion of poster touching, irrelevant. Rejected, as to the alleged "black talk" remark, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected as to alleged remark that the class "sucks", not supported by the greater weight of credible and persuasive evidence. 20-21. Rejected, not supported by the greater weight of credible and persuasive evidence. 23-25. Rejected, not supported by the greater weight of credible and persuasive evidence. 26. Rejected, subordinate. 28-29. Rejected, not supported by the greater weight of the evidence. 30, 32. Rejected, subordinate. Recitation of testimony not appropriate finding of fact. 33. Rejected, unnecessary. 34-40. Rejected, subordinate, unnecessary. Rejected, irrelevant. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 11. Rejected as to allegation of child striking head in fall, not supported by greater weight of credible and persuasive evidence. 13, 15. Rejected, subordinate. 16. Rejected as to force of toss or intent to strike child, irrelevant, no evidence that such action is appropriate regardless of intent. 17-20, 22. Rejected, subordinate. Rejected, subordinate. Rejected, unnecessary 25-30. Rejected, subordinate. 31-38. Rejected, goes to credibility of witnesses which has been determined as reflected in the Findings of Fact set forth herein. 42, 44. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 John J. Hament, Esquire 1800 Second Street, Suite 785 Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
The Issue The issue in the case is whether the Respondent’s employment with the Polk County School Board should be terminated.
Findings Of Fact At all times material to this case, the Petitioner employed the Respondent as a teacher pursuant to a Professional Services Contract. On April 1, 1999, the Respondent, then employed as a teacher at Jenkins Middle School in Haines City, Florida, became involved in an incident between a student and the parent of another student, during which the parent physically assaulted the student. The Respondent’s involvement was deemed to be inappropriate by the school principal. On April 19, 1999, the Respondent received a letter of reprimand for his actions during the incident. Although the Respondent noted that he did not agree with the reprimand, there was no appeal taken. By September of 1999, the Respondent had transferred to Crystal Lake Middle School in Lakeland, Florida, where he taught math. During his first month there, the Respondent told a male student that the student looked and behaved like a girl. The student complained to Eileen Killebrew, the school’s principal, who wrote a letter of reprimand to the Respondent dated September 24, 1999, noting that middle school students are "very emotional and impressionable" and that they look to teachers for "guidance and support." She warned the Respondent that his students "certainly do not expect to be demeaned in any way." She advised the Respondent that "further instances of inappropriate behavior will call for further disciplinary action." The Respondent received a copy of the letter and did not challenge the reprimand. By November of 1999, a number of additional complaints against the Respondent had been received from students or parents. By letter dated November 2, 1999, the principal advised the Respondent of the specific complaints (essentially a pattern of making disparaging or otherwise inappropriate remarks to students, to parents of students and to other teachers) and asked that he submit a written response to the allegations. The Respondent did not submit the requested response, but instead met with the principal to discuss the matter. By letter of reprimand dated November 17, 1999, the principal again advised the Respondent that his behavior was unacceptable and warned that additional instances would result in further disciplinary action. The Respondent received a copy of the letter and no appeal of the reprimand was taken. On February 8, 2000, the Respondent wrote a disciplinary referral for a student. On the referral, the Respondent wrote that he had told the student to "shut his redneck mouth up." Disciplinary referrals are commonly sent to the student’s parents. On February 10, 2000, the principal issued another letter of reprimand to the Respondent, stating that she found it "reprehensible that you would resort to this kind of childish behavior when dealing with students." She further wrote that she had "serious concerns about your teaching effectiveness and indeed about your professional future unless improvements are made." She again warned that further incidents could result in more severe disciplinary action. In August of 2000, the principal received information regarding inappropriate statements made to a parent during a meeting of the parent and her female child with the school’s guidance counselor. The Respondent was not involved in the meeting but apparently walked into the room where the meeting was taking place. In discussing the incident, the principal also learned that the Respondent had previously used the female student to pass his phone number to a college student interning at the school and to whom the Respondent was attracted. By letter dated August 23, 2000, the principal reprimanded the Respondent for his behavior and warned further inappropriate behavior would result in her requesting that he be suspended from teaching. In September of 2000, the Respondent was involved in two separate events. In one incident, the Respondent made inappropriate remarks to a student about the child’s mother. The child told the mother, who came to the school and complained to the principal. In the other incident, a teacher at the school reported an incident where the Respondent pushed or struck a child on the forehead. By letter dated September 22, 2000, the principal advised the Respondent of the complaints and scheduled a conference with him to discuss the situation. She advised that he could bring a representative to the conference. The conference occurred on September 25, 2000. The Respondent attended the meeting and was accompanied by a representative from the Polk County Education Association. During the meeting, the Respondent acknowledged the incidents. By letter to the Polk County School Superintendent dated September 25, 2000, the principal requested that "the next step in progressive discipline be taken" and that the Respondent be suspended without pay for five days from his teaching position. By letter dated September 28, 2000, from the Polk County Superintendent of Schools, the Respondent was advised that he would be suspended without pay for five days beginning October 2, 2000. The suspension occurred as scheduled. On or about May 16, 2001, the Respondent became involved in events with two students in separate classes. In the first incident, students in the Respondent’s classroom were completing a math exercise which required coloring answers on a score sheet. The Respondent noticed that one of the students was incorrectly coloring the sheet and made a disparaging statement to the student about his work, stating that if the instructions had been written in "clown" the student might have understood them. The Respondent and the student eventually engaged in a verbal altercation during which the Respondent used the word "stupid." The student understood the Respondent to say that the student was stupid. The Respondent asserts that he actually said the child was "acting stupid." In any case, the Respondent wrote a disciplinary referral on the student. At the change of classes, the student told a close friend who was coming into the Respondent’s classroom about the disciplinary referral. The friend asked the Respondent about the referral and the Respondent declined to answer the question, instead suggesting that after school, the friend could ask his "boyfriend" about the incident. The friend concluded that the Respondent was suggesting that the children were homosexual. The students complained to the principal about the Respondent’s statements. The principal asked the Respondent to respond to the allegations, which he did by written statement. Although the Respondent’s statement does not address use of the word "stupid" in reference to the first child, the statement acknowledges that he told the second student to get the information by asking his "boyfriend" though he denied he had intended to imply homosexuality in his remark. By letter to the Polk County School Superintendent dated May 18, 2001, the principal requested termination of the Respondent’s employment with the Polk County School System. By letter from the Polk County School Superintendent dated May 21, 2001, the Respondent was notified that the Superintendent would recommend to the School Board that his employment be terminated. In the letter, the grounds for the termination are identified as the Respondent’s "continued unprofessional and inappropriate behavior with students including embarrassing and disparaging remarks." By letter from the Polk County School Superintendent dated June 14, 2001, the Respondent was notified that the School Board had accepted the Superintendent’s recommendation that his employment would be suspended pending an administrative hearing. Based on the continuing pattern of unprofessional behavior towards students, parents and other teachers, the Respondent’s effectiveness as a teacher has been diminished to the extent that the Crystal Lake Middle School principal does not want the Respondent to return as a teacher at her school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order terminating the employment of Thomas D. Lindemann as a teacher at Crystal Lake Middle School. DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ WILLIAM F. QUATTLEBAUM 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001. Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33831 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jim Thornhill, Superintendent Polk County School Board 1915 South Floral Avenue Bartow, Florida 33831-0391 Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Mr. Wheeler was employed as a teacher with Lee County School District (Lee County) from 1989 to May 6, 2004. From 1994 to 2003, Mr. Wheeler taught driver education at Lehigh Senior High School (Lehigh). Mr. Wheeler taught health at Lehigh during the 2003-2004 school year. In addition to teaching at Lehigh during 2000 to 2004, Mr. Wheeler owned a driver training school and traffic school. When Mr. Wheeler taught driver education at Lehigh, he was authorized by the Department of Highway Safety and Motor Vehicles (DHSMV) to be a third-party tester. As a third-party tester, Mr. Wheeler was allowed to test secondary school students on their knowledge of road rules and road signs and their road skills. Mr. Wheeler was authorized to issue Driver Education Licensing Assistance Program (DELAP) waivers to his high school students who passed the tests and were applying for a driver license so that they could bypass the driver license tests conducted by the DHSMV. The DELAP waivers had to be signed by an authorized representative of Lehigh. Mr. Wheeler misused his authorization as a third-party tester and granted DELAP waivers to students in his private driving school, who were not high school students. Sometime in the summer of 2003, Mr. Wheeler became the subject of a criminal investigation concerning the issuance of DELAP waivers to students through his employment at Lehigh to students in his private driving school. On August 6, 2003, the DHSMV received a complaint against Mr. Wheeler concerning his issuance of a DELAP waiver to a person who was not a high school student. On the same date, the DHSMV stopped accepting any DELAP waivers issued by Mr. Wheeler. On August 29, 2003, the Department of Education (DOE) notified Mr. Wheeler that a complaint had been filed against him, alleging that he had engaged in inappropriate conduct. On January 22, 2004, Mr. Wheeler was arrested on charges of driver license fraud. On April 16, 2004, a No Information Notice was filed by the State Attorney’s Office, advising the Clerk of the Court of the Twentieth Judicial Circuit that the State Attorney’s Office was declining to prosecute Mr. Wheeler. No further criminal actions were taken against Mr. Wheeler based on the issuance of DELAP waivers. By letter dated February 11, 2004, the DHSMV advised Mr. Wheeler that his certification as a commercial driving school instructor had been cancelled. In early 2004, Lee County began investigating Mr. Wheeler for possible disciplinary action regarding his issuance of DELAP waivers. By letter dated March 30, 2004, Lee County advised Mr. Wheeler that probable cause was found to discipline him and that a recommendation would be made to the Lee County superintendent of schools to terminate Mr. Wheeler’s employment. Mr. Wheeler resigned from his employment with Lee County effective May 6, 2004, citing that the reason for his resignation was personal reasons. Mr. Wheeler’s resignation was accepted by Lee County on the condition “that should [Mr. Wheeler] apply at a later time for employment with the District, the District in its sole and exclusive discretion, may refuse such application and/or deny him employment should it believe [Mr. Wheeler] has not been sufficiently rehabilitated in relation to the issues raised in the investigation which preceded his resignation.” Mr. Wheeler agreed to the condition imposed by Lee County. On May 11, 2004, Mr. Wheeler submitted an on-line application to the School Board for employment as an instructor. On his application he stated that he had 16 years of teaching experience. However, he listed his employment at Lehigh as commencing in 1994 and ending in 2000; his employment at Gulf Middle School as commencing in 1992 and ending in 1993; and his employment at Riverdale High School as commencing in 1989 and ending in 1992. The employment dates listed for these three schools totaled 11 years. Mr. Wheeler also listed that he had been employed from December 2000 to February 2004 as the owner- instructor of a private driving school. On his application, Mr. Wheeler listed the reason for terminating his employment with Lee County as personal. Although this reason is technically correct, Mr. Wheeler should have disclosed the circumstances under which he resigned, meaning that he should have disclosed that Lee County intended to discipline him and that he reached a settlement agreement in which he resigned for personal reasons. Mr. Wheeler listed Brian Botts, who was an assistant principal at Lehigh, as a reference. Although Mr. Botts completed a reference form, nothing on the form eluded to the problems that Mr. Wheeler had when he taught at Lee County. Mr. Wheeler submitted a resume to the School Board as part of his application package. The resume correctly listed his employment dates with Lee County and correctly listed his employment with Lehigh as commencing in 1994 and ending in 2004. In addition, Mr. Wheeler’s resume listed a year of employment at Temple Christian School in Connersville, Indiana. The number of years of teaching experience listed on the resume totaled 16 years as he had stated on his on-line application. On August 25, 2004, the School Board received a Verification of Teaching/Experience from Lee County, showing that Mr. Wheeler had been continuously employed by Lee County from 1989 to 2004. Mr. Wheeler was hired by the School Board as a substitute teacher effective August 18, 2004. Although Mr. Wheeler incorrectly listed the dates of employment at Lehigh on his on-line application, such incorrect listing was not intentional based on the evidence as a whole, particularly the submission of the resume as part of the application package, the listing of Brian Botts as a reference, and the statement on the on-line application that correctly showed the number of years Mr. Wheeler had been employed as a teacher. The School Board was not duped concerning the number of years that Mr. Wheeler had taught at Lehigh because the School Board had received an employment verification form from Lee County, which accurately showed the number of years that Mr. Wheeler had worked as a teacher at Lehigh. Although Mr. Wheeler did not intend to deceive the School Board about the number of years that he worked for Lee County, he should have at least informed the School Board of the circumstances surrounding his resignation from Lee County. Such information had a direct bearing on his qualifications for teaching and should have been disclosed. For the 2004-2005 school year, Mr. Wheeler worked for the School Board as a substitute teacher. Most of his teaching during this period was done at Immokalee High School (Immokalee). Mr. Manny Touron was the principal at Immokalee during the time Mr. Wheeler worked as a substitute teacher. Ms. Troy Kirkland, an assistant principal at Immokalee, was familiar with Mr. Wheeler’s work while he was substituting. By letter dated April 1, 2005, DOE notified Mr. Wheeler that a complaint had been filed with DOE, alleging that Mr. Wheeler had engaged in inappropriate conduct. DOE further advised Mr. Wheeler that an investigation was being conducted based on the allegations. In the summer of 2005, a full-time teaching position came open at Immokalee for a health teacher. Mr. Touron recommended Mr. Wheeler for the position. Mr. Touron completed a Recommendation/Personnel Action Form, indicating that he had contacted two references concerning Mr. Wheeler. One of the references was Ms. Kirkland. The other reference was Ms. Darlene Weber, who had worked with Mr. Wheeler at Lehigh. At the time Mr. Touron recommended Mr. Wheeler for the health teacher position, he was aware Mr. Wheeler had been arrested for fraud at one time. On July 18, 2004, Mr. Touron sent an e-mail to an investigator with the School Board’s Human Resources Department. The e-mail stated: Peter, I just sent a recommendation for Russell Wheeler for the position of Health. He has been subbing for us all year and has done a great job. He taught at Riverdale and Lehigh. At Lehigh there was an issue that he was arrested for fraud. Something to do with drivers [sic] licenses. I need to know if he has been cleared from that charge. I assume that he has because of his sub status. Please let me know. Two days later Mr. Touron received a reply from the investigator, stating that Mr. Wheeler had been cleared of the criminal charges. On July 22, 2005, Mr. Wheeler completed a Criminal Record form in which he omitted to say whether he had ever had a criminal record expunged. At some time, Mr. Wheeler did have his arrest records expunged, but he does not know when that was done. Mr. Wheeler was hired on an annual contract basis, effective August 3, 2005, as a full-time health teacher at Immokalee. In November 2005, a full-time position for a driving education teacher position came open at Immokalee. Mr. Touron recommended Mr. Wheeler for the position, and Mr. Wheeler’s assignment was changed from health teacher to driver education teacher. Ms. Debra Ogden, who was the coordinator of the driver education program, gave Mr. Wheeler an Application for Driver Education Teacher Certification as a Third Party Tester to complete and submit.1 Mr. Wheeler did not advise Ms. Ogden that his certification as a third-party tester had been cancelled when she asked him to complete and submit the application form. Mr. Wheeler submitted the application certification as a third- party tester, and the application was denied in December 2005. Ms. Ogden learned of the denial in January 2006. Ms. Ogden asked Mr. Wheeler about the denial of his application, and he explained that he had lost his certification as a third-party tester and that his certification as a commercial driving school instructor had been cancelled. He told her that he had had some problems in Lee County concerning DELAP waivers, but that he was trying to take care of the problem and was working on getting recertified as a third-party tester. Ms. Ogden contacted a driver education teacher at another school in Collier County and arranged to have that teacher do the third-party testing for the students at Immokalee. She advised Mr. Touron that she had arranged to have another teacher do the third-party testing for Mr. Wheeler. On April 3, 2006, the commissioner of education filed a six-count Administrative Complaint against Mr. Wheeler, alleging that Mr. Wheeler “engaged in inappropriate and unprofessional conduct in that he fraudulently issued waivers to individuals who were not students at Lehigh Senior High School but in fact were customers of his private business” and that he “resigned in lieu of termination.” The Administrative Complaint charged that Mr. Wheeler violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(4)(c), 6B- 1.006(5)(a), and 6B-1.006(5)(h). When Mr. Wheeler received the Administrative Complaint, he did not advise any of the School Board’s administrators, including Mr. Touron, that an administrative complaint had been filed against him. On July 24, 2006, Mr. Wheeler and the commissioner of education entered into a settlement agreement (Settlement Agreement), which was contingent on being accepted by the Education Practices Commission (EPC). The Settlement Agreement stated that Mr. Wheeler “neither admits nor denies, but elects not to contest the allegations set forth in the [commissioner of education’s] Administrative Complaint.” Mr. Wheeler agreed to accept a letter of reprimand and to be placed on probation for two employment years. The Settlement Agreement further provided that, if Mr. Wheeler was currently employed as a teacher, the probation would begin upon the issuance of a final order by the EPC, accepting the Settlement Agreement. Among other conditions, the Settlement Agreement provided that Mr. Wheeler would contact DOE within ten days of the issuance of the final order and provide the name and address of his work site as well as the name, address, and telephone number of his immediate supervisor. The Settlement Agreement required Mr. Wheeler to “make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written annual performance evaluation or assessment prepared by his supervisor within ten (10) days of it[s] preparation.” At the time he entered into the Settlement Agreement, Mr. Wheeler did not advise any of the School Board’s administrators that he had executed a settlement agreement with the commissioner of education. The School Board gave Mr. Wheeler an annual contract for the 2006-2007 school year. By letter dated October 5, 2006, Mr. Wheeler was advised by the EPC that the Settlement Agreement had to be accepted by the EPC and that a final order would be issued by the EPC upon the EPC’s acceptance of the Settlement Agreement. The EPC filed its Final Order on February 8, 2007, accepting the Settlement Agreement. On February 20, 2007, Mr. Wheeler sent a facsimile transmission to Rita Healy, his probation officer with DOE, advising her that his supervisor was Mr. Touron and providing contact information. Mr. Touron was advised by Mr. Wheeler that a Final Order had been issued, placing Mr. Wheeler on probation for two years. Mr. Wheeler also told Mr. Touron that Mr. Touron would need to provide to DOE a copy of Mr. Wheeler’s annual evaluation when it was completed. On March 20, 2007, Ms. Healy advised Mr. Touron that a Final Order had been issued by the EPC, placing Mr. Wheeler on probation for two years. Ms. Healy sent a copy of the Final Order to Mr. Touron by facsimile transmission and by e-mail. For some unknown reason, the Final Order was never placed in Mr. Wheeler’s personnel file, In the 2006-2007 school year, Immokalee was on status as an “F” school. In order to rehabilitate the school, a new principal, Ms. Linda Salazar, was appointed as principal at Immokalee for the 2007-2008 school year. Ms. Salazar met with the faculty at Immokalee to determine which teachers she would retain for the 2007-2008 school year. She interviewed Mr. Wheeler, and there was no discussion concerning the Final Order that had been issued by the EPC, reprimanding Mr. Wheeler and placing him on probation for two years. Mr. Wheeler thought that Ms. Salazar knew about the disciplinary action against him because he had told Mr. Touron about the Final Order. Mr. Touron did not advise Ms. Salazar or the School Board’s Human Resources Department about the Final Order disciplining Mr. Wheeler. By letter dated March 15, 2007, Ms. Salazar notified Mr. Wheeler that he had been selected to teach at Immokalee for the 2007-2008 school year. His employment at Immokalee for the 2007-2008 school year was on an annual contract basis. Mr. Wheeler sent Ms. Healy a copy of his evaluation for the 2006-2007 school year after he received it in April 2007. Mr. Wheeler also sent a copy of his evaluation for the 2007-2008 school year to Ms. Healy. Although, the Settlement Agreement required that Mr. Wheeler make arrangements for his immediate supervisor to provide the EPC with a copy of the annual evaluation, Ms. Healy considered it to be Mr. Wheeler’s responsibility to make sure that she received copies of the evaluations, regardless of who actually sent them. There was no dispute regarding the authenticity of the evaluations which Mr. Wheeler provided to Ms. Healy. On June 11, 2008, Mr. Wheeler entered into a professional service contract with the School Board. Unlike the annual contracts, the professional service contract was to “be renewed each year in accordance with and subject to the provisions of F.S. §1012.33 and in conformity with Board policy and any applicable collective bargaining agreement then in place.” In August 2008, Mr. Wheeler again applied to the DHSMV for his third-party tester certification. On or about August 1, 2008, he dropped off the application for Ms. Salazar to sign as representative of Immokalee. At this time, Ms. Salazar was unaware that Mr. Wheeler’s third-party tester certification had been canceled and assumed that the application was a recertification document that teachers often left in her mail box to be signed. Ms. Salazar signed the application form. On September 9, 2008, Ms. Ogden sent an e-mail to Ms. Salazar, requesting that Ms. Salazar write a letter of recommendation for Mr. Wheeler for his third-party tester application. The e-mail stated: Hi, Linda, would you be willing to write a letter of support for Russ Wheeler to become a Third Party Tester through the DMV, so he can legally administer the written and road test and issue waivers for your students? I am not sure if you know the history, but there were charges brought against him in Lee Co. and the [sic] he is having trouble getting the state to allow him to become a Third Party Tester. I will be writing one for him and if you are willing, here is the contact information. . . . Ms. Salazar asked Mr. Wheeler to come and talk about the charges that had been brought against him. Mr. Wheeler brought all the documentation that he had relating to the criminal charges. He explained to Ms. Salazar that the charges had been dropped. He told her that he had owned a private driving school and that he had been framed for fraud, and that was the reason that he resigned from Lee County. No mention was made by Mr. Wheeler that disciplinary action had been taken against him by the EPC. Mr. Wheeler assumed that Ms. Salazar knew about his probation because he had discussed the issue with Mr. Touron. Ms. Salazar declined to write a letter of support on behalf of Mr. Wheeler. At this time, Ms. Salazar was unaware that Mr. Wheeler had been reprimanded and was on probation. Mr. Wheeler received his third-party tester certification on October 24, 2008. On November 21, 2008, Ms. Debbie Terry, the School Board’s director of Staffing, Recruitment, and Retention, conducted an Administrator Academy Training for personnel of the School Board, which included training school principals on the use of the internet website, myfloridateacher.com, which is maintained by DOE to document discipline taken against teachers holding Florida Educator’s Certificates. Ms. Terry advised the administrators attending the training that in hiring a new teacher they would be required to contact the applicant’s previous employers, access the DOE website to determine if there had been disciplinary action against the applicant, and to speak with the applicant’s references. The School Board had instituted a policy of not renewing annual contracts of teachers who had been disciplined by the EPC. Additionally, applicants for teaching positions who had been disciplined by the EPC were not hired. Ms. Terry checked the DOE website and found that Mr. Wheeler was listed as having been disciplined by the EPC. In December 2008, Ms. Terry called Ms. Salazar to inquire why Mr. Wheeler had been recommended for a professional service contract when he had been disciplined by the EPC. Ms. Salazar was unaware until Ms. Terry contacted her that Mr. Wheeler had been reprimanded and placed on probation by a Final Order from the EPC. The School Board started an investigation concerning Mr. Wheeler. The investigation included interviewing Ms. Healy, who told the School Board’s staff that she had sent a copy of the Final Order to Mr. Touron. Mr. Wheeler was also interviewed. On December 12, 2008, the School Board sent Mr. Wheeler’s evaluations for the prior two years to Ms. Healy. On December 5, 2008, Mr. Wheeler again sent Ms. Healy by facsimile transmission copies of his evaluations. The fax cover sheet stated that Ms. Salazar was the principal at Immokalee. After the investigation was complete, the superintendent advised Mr. Wheeler by letter dated May 18, 2009, that he would be recommending to the School Board that Mr. Wheeler’s employment be terminated. The superintendent alleged in the Notice of Intent Recommendation to Terminate Employment that the recommendation for termination was based on the following acts: Count 1: [He] falsely indicated the reasons for [his] separation from Lee County, Florida schools. In addition, [he] failed to disclose pertinent and relative information on [his] employment application; specifically, that [he] resigned from Lee County, Florida, schools “in lieu of termination.” Count 2: [He] falsely represented in [his] employment application the correct termination date of May 6, 2004, leaving a four-year employment discrepancy. Count 3: [He] violated the terms of [his] probation and settlement agreement with the Florida Department of Education by failing to disclose that [his] immediate supervisor, effective August 2007, was Linda Salazar, principal of Immokalee High School. In addition, [he] did not disclose the fact to Ms. Salazar that [he] entered into a settlement agreement. At some point in time, Ms. Salazar confronted [him] after learning that there was an issue relative to [his] certifying drivers’ education certificates; however, [he was] not forthcoming and indicated to her that there wasn’t a problem and assured her that the FLDOE case had been dropped. Count 4: In furtherance of [his] deception, [he] failed to follow the directive of [his] settlement that required that [his] evaluations be forwarded to the FLDOE by [his] supervisor. [He] directly forwarded the evaluations to FLDOE without the knowledge of [his] supervisor and the FLDOE. Count 5: [He was] found “guilty of an act involving gross immorality or an act involving moral turpitude” and attempted to conceal this knowledge from the school district. On May 5, 2008, Mr. Wheeler was approved to teach a driver education course for migrant students during summer school. Mr. Wheeler was to work 32 hours per week for nine weeks at a rate of pay of $40 per hour. His total compensation for the summer school employment was to have been $11,520. By e-mail dated May 27, 2009, Ms. Salazar advised Mr. Wheeler that he could not teach during summer school because of the recommendation to terminate his employment. Mr. Wheeler successfully completed his probation with DOE. Ms. Healy notified Mr. Wheeler by letter dated March 20, 2009, that the probation was closed. Ms. Healy did not consider that any actions by Mr. Wheeler during his probation constituted a breach of the Settlement Agreement which would be prosecuted by the EPC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order finding that Mr. Wheeler is guilty of failing to disclose the relevant and pertinent information on his employment application in violation of Florida Administrative Code Rule 6B-1.006(5)(i) and School Board Policy 3121; finding that Mr. Wheeler is not guilty of the other violations set forth in the notice of intent to terminate; suspending Mr. Wheeler without pay for eight months, beginning May 18, 2009; and reinstating Mr. Wheeler to his employment at the end of his suspension. DONE AND ENTERED this 22nd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of December, 2009.
The Issue Whether Respondent committed the actions set forth in the Amended Administrative Complaint dated July 31, 2014, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The School Board of Broward County (School Board) is responsible for investigating and prosecuting allegations of misconduct against individuals it employs. Respondent is employed by the School Board. As a member of the School Board’s instructional staff, Respondent’s employment is subject to section 1012.33, Florida Statutes (2014),1/ which provides that his employment will not be suspended or terminated except for “just cause.” Respondent is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Broward County, Florida. The Incidents At all times relevant to the allegations, Respondent was employed as a physical education (PE) teacher at Riverglades. On January 10, 2014, Respondent was attempting to move his students inside after their time on the playground. One student, S.W., was talking loudly and frustrating Respondent’s efforts. In response to this, Respondent pulled down on S.W.’s arm or wrist and screamed “Be quiet!” in her ear. S.W. was not physically harmed by this incident and did not cry. However, when asked about how the incident made her feel, she testified “not good.” Respondent’s approach was unnecessary, particularly considering that Respondent is over six feet tall and S.W. was a ten-year-old child at the time. Respondent could certainly project authority and correct a student’s inappropriate behavior without the need to resort to physical contact and screaming. After speaking with her teacher, S.W. filed a Bullying Witness Statement Form. Another student, C.B., witnessed the incident and similarly filed a report. On January 15, 2014, Ms. JoAnne Seltzer, intern principal at Riverglades, held an informal conference with Respondent regarding the incident involving S.W. In the conference summary report issued on January 21, 2014, Principal Seltzer notified Respondent of her expectation that Respondent would refrain from touching, embarrassing, screaming at, or demeaning students in the future. This constituted a direct order to Respondent. On February 12, 2014, J.G., a fifth grade student at the time, filed an incident report after Respondent called J.G. by the name “Miguel” on multiple occasions. J.G. is of Hispanic origin, and J.G. believed that Respondent called him “Miguel” in a derogatory manner on the basis of his ethnicity. When J.G. attempted to correct Respondent by telling him his real name, Respondent retorted “same thing.” Respondent contended that he called J.G. “Miguel” because he was confusing J.G. with a second-grader who looked similar to J.G. and whose name was in fact Miguel. This testimony is rejected as not credible. Respondent called J.G. “Miguel” on a great many occasions, and was always corrected by J.G. These instances were not mistakes. They occurred in the middle of the school year, by which time Respondent should have known J.G.’s actual name. It is also uncontroverted that Respondent had a class roster, which should have eliminated any confusion. The purported look-a-like did not testify, nor was there any other corroboration of Respondent’s claim. These incidents occurred in the presence of the entire class, embarrassing J.G. and making him “mad.” On February 25, 2014, Principal Seltzer provided Respondent with a letter directing him to report to her office on February 28, 2014, for a pre-disciplinary meeting regarding his inappropriate conduct. Before Principal Seltzer had an opportunity to hold the meeting with Respondent, on February 27, 2014, C.B., then an 11-year-old student, filed an incident report claiming that Respondent, the day prior, had told C.B. that he was a “loser.” At hearing, C.B. also testified that Respondent called him fat. Student witnesses, as well as Respondent, credibly testified that the “loser” comment was in reference to C.B. losing a game during class. Given that context, it was not shown that the term was used in a derogatory fashion. As for the “fat” comment, Respondent admitted that the other students would joke with C.B. about C.B.’s weight and that Respondent would “laugh with the kids” but maintained he never personally called C.B. any derogatory names. However, two other students, S.W. and J.G., corroborated C.B.’s claim that Respondent called C.B. fat, and this testimony is credited. This incident embarrassed C.B. and made him feel “bad.” Respondent’s behavior was inappropriate. After these new allegations came to light, on February 27, 2014, Principal Seltzer provided Respondent with a second letter informing him of the additional incidents that had been brought to her attention and requesting that he report to her office on March 4, 2014, for his second three-day pre- disciplinary meeting. After the pre-disciplinary meeting, on March 10, 2014, Principal Seltzer recommended that Respondent be suspended for five days. Respondent acknowledged receipt of the recommendation on March 14, 2014. Subsequent to the notice of recommendation, but before its presentation to the School Board, the parents of students S.B., J.B., and K.B., requested a meeting with Principal Seltzer regarding Respondent’s inappropriate behavior in the presence of their children. S.B., a nine-year-old student, credibly testified that on one occasion Respondent, while looking directly at her, said the words “fucking bitch.” The evidence was unclear as to whether Respondent directed those words to S.B. or was speaking to someone else on the phone. Respondent contended that he does not use profanity during class. J.B., a nine-year-old student, and K.B., a seven-year- old student, both testified that they heard Respondent use the words “God dammit” and use profanity on multiple occasions during class. Respondent admitted that he used the words “God dang” during class, but denied that he ever said “dammit.” The children’s testimony is credited. A conference was held on March 19, 2014. The student's mother, Principal Seltzer, Mr. Duhart (the interim assistant principal), and Respondent discussed the allegations brought by S.B., J.B., and K.B. On April 14, 2014, Principal Seltzer held a pre- disciplinary meeting with Respondent to discuss the reports of misconduct that had surfaced after her previous recommendation for a five-day suspension. On April 15, 2014, Principal Seltzer changed her recommendation to a ten-day suspension based upon the additional complaints. Respondent acknowledged receipt of this recommendation on April 23, 2014. Principal Seltzer testified that her ultimate recommendation for a ten-day suspension was based on Respondent’s prior disciplinary history, dating back to 2008, and the fact that his recent misconduct had continued despite repeated warnings. The Amended Administrative Complaint also references reports from students that, on one occasion, Respondent attempted to kick a student in the head. Although J.G.’s, C.B.’s and E.C.’s testimony all mention this incident, the scant details elicited at hearing failed to explain how Respondent could attempt to kick a student in the head from a sitting position. Petitioner failed to prove by a preponderance of the evidence that Respondent tried to kick a student in the head. At hearing, Respondent suggested that the students who filed complaints against him had colluded in an effort to get him fired, but this proposition is rejected. Respondent’s comments and laughing with students about C.B.’s weight and Respondent’s unnecessarily physical and aggressive discipline of S.W. failed to protect these students from conditions harmful to their mental health. Respondent’s actions toward C.B. and his repeated addressing of student J.G. as “Miguel” intentionally exposed these students to unnecessary embarrassment and disparagement, and the actions toward J.G. also constituted harassment on the basis of race and national or ethnic origin. Respondent violated the Principles of Professional Conduct for the Education Profession in Florida. Respondent engaged in misconduct in office. Respondent used profanity and engaged in other inappropriate communications with students J.G., C.B., S.W., K.B., and S.B. on several occasions. Respondent demonstrated incompetency to discharge his required duties as a teacher as a result of this inefficiency. Respondent intentionally refused to comply with Principal Seltzer’s direct orders not to touch, embarrass, demean, or scream at students. These orders were reasonable in nature. Respondent engaged in gross insubordination. Prior Disciplinary Action On February 13, 2008, the executive director of the School Board’s Professional Standards and Special Investigative Unit gave Respondent a written reprimand based upon allegations of assault and battery. The letter stated that there was sufficient basis to establish probable cause and recommend discipline. The letter constituted a disciplinary action taken against Respondent in his position as an educator. On January 14, 2011, the intern principal of Coral Glades High School, Respondent’s employer at the time, held a pre-disciplinary meeting with Respondent based on allegations that he intentionally exposed students to unnecessary embarrassment or disparagement. By letter dated January 21, 2011, Respondent was issued a written reprimand for this misconduct. On January 26, 2012, the intern principal of Coral Glades High School, Respondent’s employer at the time, gave Respondent a written reprimand after finding that Respondent had used profanity in the presence of students during a heated argument with a colleague.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order finding Mr. Robert Konnovich guilty of misconduct in office, incompetency, and insubordination; and suspending his employment, without pay, for a period of ten days. DONE AND ENTERED this 24th day of August, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 24th day of August, 2015.
The Issue Whether the Education Practices Commission may revoke or suspend John T. Guzalak's Florida teaching certificate, or otherwise discipline Mr. Guzalak, for violations alleged in an Administrative Complaint entered September 21, 1992?
Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, on behalf of the EPC, is authorized to discipline individuals holding Florida teaching certificates. The Respondent is John T. Guzalak. At all times relevant to this proceeding, Mr. Guzalak held Florida teaching certificate number 615516. Mr. Guzalak is certified to teach English and Speech. Mr. Guzalak's teaching certificate is valid through June 30, 1995. From approximately August of 1987, until June of 1992, Mr. Guzalak served as a teacher for the Okaloosa County School Board (hereinafter referred to as the "School Board"). Mr. Guzalak's Attendance at Choctawhatchee Senior High School. Mr. Guzalak attended, and graduated from, Choctawhatchee Senior High School (hereinafter referred to as "Choctaw"). Mr. Guzalak graduated from Choctaw in 1981. Choctaw is a high school located in Okaloosa County, Florida. Choctaw has approximately 2,000 students, 117 to 120 teachers and a total of approximately 160 employees. While a student at Choctaw, Mr. Guzalak was active in debate and drama. His drama teacher was Mary Jo Yeager. Ms. Yeager was so impressed with Mr. Guzalak's acting ability that she cast him in the male leading role of essentially every play produced at Choctaw while Mr. Guzalak was a student there. Ms. Yeager and Mr. Guzalak developed a friendship and still remain friends. Mr. Guzalak's Employment by the School Board. After Mr. Guzalak had graduated from Choctaw and was attending college, Mr. Guzalak informed Ms. Yeager that he was interested in becoming a teacher. Ms. Yeager, who was planning to retire in a few years, talked to Richard G. Bounds, the Principal at Choctaw, about the possibility of Mr. Guzalak replacing her when she retired. Prior to August, 1987, Mr. Guzalak applied for a teaching position with the School Board as a teacher at Meigs Junior High School (hereinafter referred to as "Meigs"). Ms. Yeager recommended that Mr. Guzalak be hired. Mr. Guzalak was hired to teach at Meigs and began his employment with the School Board in August, 1987. Mr. Guzalak taught speech/drama and English during the 1987-1988 school year at Meigs. The Stage Crafters' Party. In January, 1988, Mr. Guzalak was involved with a local theatre group known as Stage Crafters. The group presented a play in which Mr. Guzalak participated during that month. Mr. Guzalak organized and gave a party for the cast of Stage Crafters after the presentation of the play. The party was held at the home of Mr. Guzalak's parents, where Mr. Guzalak lived until approximately August, 1991. Mr. Guzalak invited all students in his speech/drama classes at Meigs to attend the Stage Crafters' party. Mr. Guzalak invited his students because he thought it would be beneficial for his students to meet and talk to individuals who were involved in drama and who had more experience with acting. Mr. Guzalak had alcoholic beverages available for his guests during the Stage Crafters' party. A table was set up where guests were able to obtain alcoholic drinks. Adults drank alcoholic beverage in front of Mr. Guzalak's students during the party. Alcohol was consumed in the presence of students who were under the legal age required to consume alcoholic beverages. The evidence failed to prove that students who were not legally old enough to drink alcohol who were at the Stage Crafters' party were encouraged or allowed to drink alcoholic beverages. The evidence also failed to prove that underage students were in fact drinking in the presence of Mr. Guzalak or that Mr. Guzalak drank alcoholic beverages in front of any underage students. The testimony of Chris Hutcherson, a student at Meigs at the time of the party, concerning the party was contradicted by the testimony of Aaron Utley, another student at Meigs at the time, and is rejected. Mr. Guzalak testified that the underage students who attended the Stage Crafters' party were mainly relegated to half of the house and the adults and alcohol were located, and the consumption of alcoholic beverages took place, in the other half of the house. Mr. Guzalak testified that this separation of his underage students from the adults consuming alcohol was deliberate and intended to mitigate the extent to which alcohol would be consumed in front of his underage students. This testimony contradicts the purpose for which Mr. Guzalak indicated the students were invited to the Stage Crafters' party and is rejected. Mr. Guzalak simply failed to exercise good judgement when he allowed his underage students to attend a party without also inviting their parents when he knew that alcoholic beverages would be consumed. Mr. Guzalak was counseled by Bobby Smith, Principal at Meigs and Mr. Guzalak's supervisor, after Mr. Smith learned of the party. Mr. Guzalak told Mr. Smith that he had not consumed alcohol in the presence of his students at the party. Mr. Guzalak did admit that alcoholic beverages had been consumed in front of his students, although he minimized the extent to which alcohol had been consumed. Mr. Smith counseled Mr. Guzalak about his lack of judgement in allowing his underage students to attend a party where alcohol was being consumed. Meigs Student-Cast Dinner. In May, 1988, Mr. Guzalak was involved with a play presented at Meigs. The cast of the play consisted of Meigs students. After the play, Mr. Guzalak took the cast of the play to dinner at a restaurant. Some parents also attended the dinner. Mr. Guzalak failed to inform Mr. Smith or anyone else in the Meigs administration about the dinner. During the dinner Mr. Guzalak drank a glass of wine in the presence of the students, who were too young to legally consume alcoholic beverages, and the parents who attended the dinner. After the dinner about five students stayed to talk to Mr. Guzalak after everyone else had departed. When Mr. Guzalak was ready to take the students home who had stayed, he let one of the students drive his automobile. The student driver was 15 years of age at the time. The student driver had a learners' driving permit which allowed her to drive with an adult in the automobile. The student driver took the other students home and then drove to her own home. Mr. Guzalak then drove himself home from the home of the student that had driven his automobile. Mr. Guzalak testified that he had allowed the student driver to drive his automobile because he was concerned about the fact that he had consumed a glass of wine. This testimony is inconsistent with Mr. Guzalak's testimony that he did not give the drinking of the glass of wine with dinner in the presence of the students any thought, one way or the other, and is not credible. Mr. Guzalak allowed the student to drive his automobile that evening because Mr. Guzalak wanted to be accepted by students as a friend and not just a teacher. Consuming alcoholic beverages in front of students is against the policies of the School Board. Mr. Smith and Mr. Guzalak had previously discussed the inappropriateness of a teacher consuming alcohol in front of students as a result of the Stage Crafters' party. Despite this prior warning, Mr. Guzalak again exercised poor judgement and failed to adhere to School Board policy. Mr. Smith was informed of the dinner and spoke to Mr. Guzalak about it. Mr. Smith admonished Mr. Guzalak for drinking alcohol in front of his students. A few days after their discussion, Mr. Guzalak was given a formal, written reprimand by Mr. Smith. See Petitioner's Exhibit 2. Mr. Guzalak was specifically reprimanded for drinking alcohol in front of his students. He was also informed that he was required "to discuss any and all school sponsored activities with [Mr. Smith] before they occur." See Petitioners' Exhibit 2. During Mr. Smith's conference with Mr. Guzalak, Mr. Guzalak expressed concern to Mr. Smith about why it was improper for him to consume alcohol in front of students under the circumstances of the cast dinner. Mr. Guzalak found it difficult to understand why the drinking of a glass of wine with dinner in the presence of students by a teacher was inappropriate. Mr. Guzalak's Employment at Choctaw. Ms. Yeager decided to retire from Choctaw after the 1988-1989 school year. She recommended that Mr. Bounds hire Mr. Guzalak to be her replacement. Mr. Bounds questioned Mr. Smith about Mr. Guzalak's performance at Meigs. Mr. Smith informed Mr. Bounds of the dinner incident when Mr. Guzalak drank a glass of wine in the presence of students and provided Mr. Bounds with a copy of the written reprimand, Petitioner's Exhibit 2, that Mr. Smith had given to Mr. Guzalak. Mr. Bounds, Mr. Guzalak's supervisor at Choctaw, discussed Mr. Smith's written reprimand with Mr. Guzalak prior to, or soon after, Mr. Guzalak's employment at Choctaw. Mr. Bounds cautioned Mr. Guzalak about consuming alcohol in front of underage students. This was the third time that Mr. Guzalak had been cautioned about the inappropriateness of consuming alcohol in front of underage students. Mr. Guzalak was hired to teach at Choctaw. Mr. Guzalak began his employment at Choctaw in August of 1989. Mr. Guzalak taught at Choctaw during the 1989-1990, 1990-1991 and 1991-1992 school years. Part of his duties included coaching the forensic teams. The 1990-1991 School Year--Student Visits to Mr. Guzalak's Home. Mr. Guzalak developed and maintained relationships with several Choctaw students which went beyond the appropriate and acceptable teacher- student relationship. Those relationships were more typical of the relationships that students develop among themselves. During the 1990-1991 school year students would go to Mr. Guzalak's home to visit. Students who went to Mr. Guzalak's home during the 1990-1991 school year included Sarah Stimac, David Barron, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul, Kevin Mock, Richard "Matt" Schoditsch, David Hodges, Thomas Ignas and Ross Foster. Sarah Stimac, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul and Kevin Mock were seniors at Choctaw during the 1990-1991 school year. David Barron was a sophomore at Choctaw. David Hodges and Thomas Ignas were juniors at Choctaw. Matt Schoditsch and Ross Foster were also students at Choctaw. Initially, students began going to Mr. Guzalak's home for school- related purposes. They went for assistance from Mr. Guzalak with school subjects, to practice for plays and to practice for forensic team competitions. Students eventually began visiting Mr. Guzalak's home primarily for social reasons. Mr. Guzalak allowed students to come to Mr. Guzalak's home to visit without invitation, without informing Mr. Guzalak they were coming and without asking for Mr. Guzalak's permission. While at Mr. Guzalak's home, students would watch movies, listen to music, play music, play chess, talk and "just hang out." Mr. Guzalak's characterization of student visits as tending to be "academic in nature" is rejected. At some time during the Fall of 1990, Mr. Guzalak invited a group of students who had formed a rock band to come to his home to practice for an upcoming pep rally. Bobby Arnold was one of the first students to be invited to practice at Mr. Guzalak's home. Eventually, the students included Steve Bucci, Kevin Foster and John Randall. A few other students would join in on occasion. At some point, students, including those mentioned in the foregoing finding of fact, would go to Mr. Guzalak's home and just play music as opposed to practicing for some upcoming event. Other students, including Patrick Peavy, Eric Gaul and Kevin Mock would listen. The music sessions were social in nature and were not school related. Bobby Arnold's suggestion that the students and Mr. Guzalak, in addition to playing music, would talk about books is rejected to the extent that Bobby Arnold was suggesting an academic purpose for his visits. As Steve Bucci described the visits, they were "jam sessions." Bobby Arnold went to Mr. Guzalak's home at least five to seven times during the 1990-1991 school year. Steve Bucci indicated that the music sessions at Mr. Guzalak's home took place two times a month and more often if he was getting ready for a talent show. Matt Schoditsch went to Mr. Guzalak's home at least six times. Matt Schoditsch's testimony that he only went to Mr. Guzalak's home for academic purposes and not for social reasons was contradicted by many of the other witnesses in this proceeding, including Mr. Guzalak, and is rejected. Mr. Schoditsch's suggestion that students would "be sitting there reading a book or something . . . Magazines" is rejected. Even Mr. Guzalak admitted that students came for social reasons. David Barron went to Mr. Guzalak's home more than twelve times and less than twenty times. During three to five of those visits by David Barron went to Mr. Guzalak's home, beer was consumed by underage students in Mr. Guzalak's presence. Matt Schoditsch, Kevin Foster, Patrick Peavy and others were at Mr. Guzalak's home at times that David Barron saw beer consumed by underage students in front of Mr. Guzalak. Mr. Guzalak also consumed beer in David Barron's presence and the presence of other underage students. The beer consumed by David Barron was either provided by Mr. Guzalak or Mr. Barron brought his own beer. On one of the occasions where Mr. Guzalak provided beer to David Barron at Mr. Guzalak's home, it was a type of beer that David Barron had not seen before. Mr. Guzalak said that he got the beer when he had gone north to visit his parents. On one occasion Mr. Guzalak drank a glass of wine in front of Kevin Mock. This took place despite the fact that Mr. Guzalak had previously been counselled by Mr. Smith (twice) and Mr. Bounds about the impropriety of drinking alcohol in front of students. Mr. Guzalak offered Kevin Mock a drink of the wine and Mr. Mock took it. Sarah Stimac also went to Mr. Guzalak's home during the 1990-1991 school year. Patrick Peavy started taking Ms. Stimac to Mr. Guzalak's. Mr. Peavy was Ms. Stimac's boy friend during the 1990-1991 school year. Mr. Peavy and Ms. Stimac had started doing things with a group of their friends during the summer of 1989 and by the end of the summer they had developed a relationship. Sarah Stimac began going to Mr. Guzalak's home because Patrick Peavy and his friends, primarily Eric Gaul and Kevin Mock, liked to go there and they went there often. On one occasion during the 1990-1991 school year, Sarah Stimac saw Mr. Guzalak and Eric Gaul smoke marijuana at Mr. Guzalak's home in the guest rest room. They used a "bong", a pipe-like device used for smoking marijuana. Ms. Stimac also witnessed Patrick Peavy and Kevin Mock smoke marijuana at Mr. Guzalak's home. Mr. Mock admitted to Martha Clemons, his girl friend during part of the 1990-1991 school year, that he had smoked marijuana at Mr. Guzalak's home. Sarah Stimac also saw marijuana smoked and alcoholic beverages consumed on at least one other occasion at Mr. Guzalak's home. Patrick Peavy, Eric Gaul and Kevin Mock visited Mr. Guzalak's home more frequently than other students. By their own admissions, they went to Mr. Guzalak's home, on average, from two to three times a week. Contrary to Mr. Guzalak's testimony that Mr. Peavy, Mr. Gaul and Mr. Mock were rarely at his home at the same time, Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's together or were at Mr. Guzalak's home at the same time often based upon their own admissions. Based upon the weight of the evidence, it is concluded that Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's home on a frequent and regular basis. Sarah Stimac substantiated the fact that Patrick Peavy went to Mr. Guzalak's home frequently. She went with him approximately six times. She also picked him up at Mr. Guzalak's and she telephoned Mr. Peavy at Mr. Guzalak's home. Mr. Peavy told Ms. Stimac and his parents that he was going to Mr. Guzalak's home more often than he actually went. Mr. Peavy lied to Ms. Stimac and his parents so that he could do other things without Ms. Stimac or so that he could do things that his parents would not let him do if he told them the truth. This gave Ms. Stimac the impression that Mr. Peavy was at Mr. Guzalak's home more often then he actually was. Despite this fact, the weight of the evidence proved that Mr. Peavy was at Mr. Guzalak's home on a frequent and regular basis for non-academic purposes. The 1990-1991 School Year Initiation Night. At some time during the Fall of 1990, an annual event, referred to as "Initiation Night," took place at Choctaw. Groups of students at Choctaw traditionally go out together on Initiation Night. On Initiation Night during the Fall of 1990, Sarah Stimac drove Angie Smallwood to Mr. Guzalak's home at approximately 9:00 p.m. to pick up Patrick Peavy. Mr. Peavy had told Ms. Stimac that he would be there. Mr. Peavy, Eric Gaul and Kevin Mock were at Mr. Guzalak's home and were picked up by Ms. Stimac. After Sarah Stimac picked up Patrick Peavy, he told Ms. Stimac that he had been drinking and that he had smoked marijuana and taken LSD. The evidence, however, failed to prove where these events took place. More importantly, the evidence failed to prove that Mr. Guzalak was present when these events took place or that he was aware of what had happened. After leaving Mr. Guzalak's home, Ms. Stimac and the students she picked up went to a local pizza restaurant and met other students, including Matt Schoditsch. The students then went to a bayou where they built a fire. Eric Gaul had a bottle of spiced rum. At some point during the evening Okaloosa County sheriff's deputies appeared. When they did, despite the cold evening, Patrick Peavy, who had been swinging on a rope swing over the water, fell into the water. Whether Mr. Peavy did so because he was startled (as he testified) or because he was trying to get rid of the marijuana and LSD he had in his pocket (as Ms. Stimac testified) need not be decided. The evidence failed to prove that Mr. Guzalak was directly involved in this incident. It is also not necessary to decide whether Mr. Peavy had drugs in his pocket because the evidence failed to prove that Mr. Guzalak had anything to do with any such drugs. After Eric Gaul admitted that the bottle of spiced rum he had, and which the deputies had found, was his and he had convinced the deputies that he had a stranger buy the rum for him at a liquor store, the students were allowed to leave. Although Mr. Gaul, after getting into Ms. Stimac's automobile, stated that he had been given the rum by Mr. Guzalak, the evidence failed to prove the truth of this hearsay statement. After the incident at the bayou the students went back to Mr. Guzalak's home. The 1990-1991 School Year Senior Prom. The day of the 1990-1991 school year senior prom, Sarah Stimac and Patrick Peavy had a fight and broke off their relationship. They did, however, go to the prom together that night. The prom was held at a local motel. Sarah Stimac and Patrick Peavy rented a room at the motel. At some time before the prom was over, Sarah Stimac and Patrick Peavy went to the room they had rented. Mr. Guzalak came to the room to visit. Mr. Peavy had invited Mr. Guzalak. Mr. Guzalak left after Ms. Stimac gave Mr. Peavy an ultimatum that either Mr. Guzalak leave or she would, and Mr. Peavy asked Mr. Guzalak to leave. Mr. Guzalak stayed approximately five to fifteen minutes. Although there was alcohol in Ms. Stimac's and Mr. Peavy's room, the evidence failed to prove that Mr. Guzalak was aware of the alcohol or that anyone was drinking while Mr. Guzalak was there. The 1990-1991 Spring Break Canoe Trip. During the spring break of April, 1991, a student party was organized. The party consisted of a canoe trip down a local river. The party was not a school-sponsored event. Mr. Guzalak was invited to come on the 1991 canoe trip. Although Mr. Guzalak remembered that he was invited by one or more students, Mr. Guzalak, who had an excellent memory for most details, could not remember the names of any student that invited him. Mr. Guzalak spent most of the trip with Patrick Peavy, Eric Gaul and Kevin Mock. There were about 120 students who participated in the canoe trip. They met at the Choctaw parking lot the morning of the trip. During the canoe trip, underage students were drinking beer. They did so openly and in Mr. Guzalak's presence. Mr. Guzalak was offered beer at least ten times by underage students. Kevin Mock admitted that he drank beer in front of Mr. Guzalak during the trip. Mr. Guzalak did not make any effort to stop any of the underage students from drinking alcoholic beverages. Mr. Guzalak's testimony that there was nothing he could do about students drink beer on the trip is not credible. Mr. Guzalak had a duty and responsibility to attempt to stop underage students from drinking beer. Even if Mr. Guzalak's testimony that he did not attempt to stop the drinking because of the number of students involved was credible (which it is not), his testimony did not explain why he did not say something to those students who were bold enough to offer him a beer and then students who he came into contact with that were drinking beer By allowing the consumption of alcohol in his presence by students who were under the legal drinking age, Mr. Guzalak condoned their illegal behavior. When a teacher allows the violation of one law, it becomes difficult for the teacher to enforce other laws and rules governing student conduct. Mr. Guzalak failed to report the incident to Mr. Bounds or any other administrative employees at Choctaw. Mr. Guzalak should not have just ignored the fact that students, some of whom were his students, had blatantly violated the law in his presence. The 1991-1992 School Year--Mr. Bounds Second Warning. In approximately August of 1991, Patrick Peavy's father spoke to Mr. Bounds about his belief that his son was drinking alcohol and using drugs at Mr. Guzalak's home. The evidence failed to prove what basis, if any, Mr. Peavy had for his suspicions at the time he made his complaint. As a result of the concerns raised by Patrick Peavy's father, Mr. Bounds spoke to Mr. Guzalak. The conversation took place on approximately September 19, 1991. Among other things, Mr. Bounds told Mr. Guzalak that a parent had reported that students were frequenting Mr. Guzalak's home and that alcohol and drugs were being used there. Mr. Bounds told Mr. Guzalak that the parent had followed his child to Mr. Guzalak's home. While Mr. Guzalak admitted to Mr. Bounds that students were frequenting his home, he denied that alcohol was being consumed or that drugs were being used. Mr. Bounds explained to Mr. Guzalak why it was not a good idea to allow students to come to his home. Mr. Guzalak, however, did not agree with Mr. Bounds' concerns over the possible pitfalls of forming personal, social relationships with his students. On September 24, 1991, Mr. Bounds wrote a memorandum to Mr. Guzalak "to reiterate my position regarding our conversation in my office on Thursday, September 19, 1991." Petitioner's Exhibit 3. Mr. Bounds also stated the following in the memorandum: During our conversation you related to me that students from our school were invited and allowed to visit your home for non-academic reasons. Furthermore, you related to me that students from our school are not discouraged by you to establish a personal friendship with you. These personal friendships are encouraged by your participating in non-school related activities. You are hereby notified that all future contact with students from our school should be exclusively of a professional and academic nature. Moreover, meetings with our students should be held on our school property exclusively unless express permission is obtained from me. Petitioner's Exhibit 3. Mr. Bounds also arranged for Mr. Guzalak to meet with Annette Lee (formerly, Annette Francis), Personnel Director of the School Board. Ms. Lee, who was Assistant Superintendent, Human Resource Division, at the time, met with Mr. Guzalak. On October 9, 1991, Ms. Lee wrote Mr. Guzalak a letter memorializing this meeting and provided him with a copy of a document titled "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching," a form containing some School Board expectations for teacher conduct. See Petitioner's Exhibits 4 and 5. Ms. Lee also discussed the inappropriateness of Mr. Guzalak's behavior and stressed to him the importance of maintaining a professional relationship with students. Mr. Guzalak again admitted that he had developed friendships with some of his students and that he had seen them on occasion socially. Among other things, Ms. Lee stressed the following portions of the "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching" form she had provided to Mr. Guzalak: Interaction with Students: Maintain a professional barrier between you and students. You are the adult, teacher and the professional; act like the expert not like another one of the "kids." . . . . 3. Refer students to the appropriate resource person for counseling and/or discussions about personal matters. . . . . 5. Do NOT discuss your personal life or personal matters with students. Do NOT discuss your husband, boyfriend, dates or controversial issues with students. . . . . 10. Chaperone only school sponsored functions. Do NOT socialize with students. If you chaperone a field trip, put in writing what your responsibilities will be. Do NOT drink alcoholic beverages in front of students. Do NOT take children home with you. . . . . C. Reputation in the Community. . . . . Communicate with parents and document your communications. Dress and act appropriately but professionally. You are a role model in the community as well as in the school; be a good example for students. Use common sense and good judgement. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted. Avoid putting yourself in a position where you have to defend, explain, or justify your behavior or actions. Avoid putting yourself in a position where it's your word against another person's word. . . . . Petitioner's Exhibit 5. Continued Student Visits to Mr. Guzalak's Home. Mr. Guzalak was very concerned about what Mr. Bounds had told him about students coming to his home. Mr. Guzalak thought that he was being watched (by a parent) and he was concerned because some of the allegations about alcohol and drug use were true. Initially, Mr. Guzalak told students who dropped by or who asked if they could come by, not to come or that they could not stay. For example, Mr. Guzalak told Thomas Ignas and David Hodgson they should not come to his home. On at least one occasion, however, Mr. Guzalak allowed students to visit him at his home during the 1991-1992 school year after Mr. Bounds had instructed Mr. Guzalak to stop such visits. The incident took place during the first three months of 1992. Aaron Utley was told to come to Mr. Guzalak's home by either David Hodges or Thomas Ignas. When Mr. Utley arrived at Mr. Guzalak's home, Mr. Hodges and Mr. Ignas were there with Mr. Guzalak. There were empty beer cans on the coffee table. Mr. Hodges was drunk. Mr. Guzalak did not request that any of the students leave. The weight of the evidence failed to prove, however, that alcohol was consumed by Mr. Guzalak in front of the students or that the students consumed alcohol in front of Mr. Guzalak. The Florida State University Trip--September, 1991. At some time after Mr. Guzalak spoke to Mr. Bounds in September 1991, Mr. Guzalak took a group of students who were participating in the forensic program to Florida State University in Tallahassee, Florida, for a forensic competition. Among others on the trip were Chris Hutcherson, Mark Bradshaw, David MacCarroll and Josh Mickey. These Choctaw students stayed in the same motel room while on the trip. One evening, Mark Bradshaw, David MacCarroll and Josh Mickey came into the motel room where they were staying and smelled marijuana smoke. Mr. Hutcherson was in the room. Mr. Hutcherson had smoked marijuana just before the other students came into the room. Mr. Guzalak came into the motel room shortly after the students arrived and he smelled the marijuana smoke also. Mr. Guzalak asked what was going on, but no one admitted anything at that time. At some point during the trip, Chris Hutcherson admitted to Mr. Guzalak that he had smoked marijuana in the motel room. At no time did Mr. Guzalak report Chris Hutcherson's admission to Mr. Hutcherson's family, Mr. Bounds or any other administrative official. Nor did Mr. Guzalak take any disciplinary action against Mr. Hutcherson. Failing to report the use of illicit drugs was against school policy. Mr. Guzalak did not even explain to Chris Hutcherson why he should not have been using marijuana. Instead, Mr. Guzalak told Mr. Hutcherson that he had put Mr. Guzalak in an untenable position by his actions. Because Mr. Bounds had spoken to Mr. Guzalak only a few days before this incident, Mr. Guzalak's concern was not for Mr. Hutcherson or even the forensic team--"[i]t was for myself." See line 11, page 595, Transcript of the Final Hearing. Mr. Guzalak, by his use of marijuana and alcohol with students prior to this incidental, had placed himself in a position of action in a manner similar to that of Mr. Hutcherson. Therefore, it became difficult for Mr. Guzalak to carry out his responsibility as a teacher to report Mr. Hutcherson's admission. The Pensacola Trip--November, 1991. In November, 1991, the Choctaw forensic team went to Pensacola, Escambia County, Florida, to participate in a competition. Since the competition was out of Okaloosa County, students were prohibited by School Board policy from driving their own vehicles. Students who participated in the competition were required to have their parents sign a form granting permission for their child to travel on the trip. See Respondent's Exhibit 1. On the permission form it indicated that "students' may not drive themselves to out of county school-sponsored activities . . . ." The students who were going on the Pensacola trip were told to be at Choctaw at 6:15 a.m. They were scheduled to leave at 6:30 a.m. Chris Hutcherson, who was to participate in the Pensacola competition, did not want to get up as early as he would have to arise to be at Choctaw at 6:15 a.m. Therefore, Mr. Hutcherson asked his mother, Sharon Philbrook, if he could drive his automobile to Pensacola. She told him no. She also spoke to Mr. Guzalak who confirmed the School Board policy that students were not allowed to drive their own vehicles on the trip and that transportation would be provided for students for the trip. The morning of the Pensacola trip, Ms. Philbrook found a note from Chris Hutcherson indicating he had taken his stepbrother's automobile despite her instructions to the contrary. Ms. Philbrook reported the incident to Mr. Bounds who suggested that she go to Pensacola and get Mr. Hutcherson. She did so. Upon arriving at the competition site, Ms. Philbrook introduced herself to Mr. Guzalak and explained what had happened. She also told him that she had reported the incident to Mr. Bounds and that Mr. Bounds wanted Mr. Guzalak to telephone him. Mr. Guzalak was very upset about what Ms. Philbrook told him and told her he wished she had not telephoned Mr. Bounds. In light of Mr. Bounds' admonishment of Mr. Guzalak in September and Chris Hutcherson's admission to Mr. Guzalak that he had smoked marijuana on the Florida State University trip (which Mr. Guzalak had not reported), Mr. Guzalak's reaction is understandable. Mr. Guzalak's reaction and the other evidence presented by the EPC concerning this incident, however, failed to prove that Mr. Guzalak was responsible for Chris Hutcherson's violation of School Board policy against students driving their own vehicles out of the county. As a result of Mr. Hutcherson's actions, Mr. Guzalak informed Mr. Hutcherson that he could no longer travel with the forensic team. Mr. Hutcherson's testimony concerning whether Mr. Guzalak told him that it was okay to drive his own automobile to Pensacola was not credible and is rejected. The Rush Concert--February, 1992. In February, 1992, Mr. Guzalak was responsible for the production of a play at Choctaw. During the week before the play was to begin, Mr. Guzalak cancelled a rehearsal. The rehearsal was cancelled because Mr. Guzalak and several students involved in the play wanted to attend a concert by a musical group, Rush, in Pensacola. The evidence failed to prove that Mr. Guzalak went to the concert with any students from Choctaw, although he did see and speak to at least one student at the concert. The evidence failed to prove that Mr. Guzalak acted improperly or violated School Board policy in cancelling the rehearsal. Matt Schoditsch's Party--February, 1992. On a Friday evening in February, 1992, Mr. Guzalak spoke to Matt Schoditsch on the telephone. Mr. Schoditsch invited Mr. Guzalak to come to his home. Mr. Schoditsch told Mr. Guzalak that there would be other students at his home, students that Mr. Guzalak knew, and that they would be grilling food. Mr. Guzalak knew that Mr. Schoditsch was having a student get-together. Mr. Guzalak's and Mr. Schoditsch's testimony that Mr. Guzalak was invited and came to Mr. Schoditsch's home only to discuss his participation in a play is not credible. The weight of the evidence proved that Mr. Schoditsch invited Mr. Guzalak for social reasons, and that Mr. Guzalak accepted the invitation for social reasons. Mr. Guzalak accepted the invitation and went to a student's house contrary to Mr. Bounds' directive to him and contrary to Ms. Lee's advice. Mr. Guzalak testified that he had assumed that Mr. Schoditsch's parents would be there. Mr. Guzalak also testified that it was not until after students starting showing up with beer that he realized that Mr. Schoditsch's parents were not there. This testimony is not credible. In light of Mr. Bounds' directive, which Mr. Guzalak indicated he was very concerned about, a reasonable person would have inquired. Additionally, a reasonable person, especially a teacher and one who had previously been accused of being too friendly with students, would seek out a student's parents soon after arriving at their home to introduce himself or to say hello if the teacher thought the parents were home. Even if Mr. Guzalak did not know that Mr. Schoditsch's parent would not be home before he arrived, he should have realized soon after arriving that they were not there and left. Shortly after arriving at Mr. Schoditsch's home, Mr. Guzalak saw students start to arrive with beer which they began drinking. According to Mr. Guzalak and Mr. Schoditsch, Mr. Guzalak expressed concern to Mr. Schoditsch about students drinking in front of him. They also testified that Mr. Schoditsch attempted to stop the drinking, but too many students started coming, and there was too much beer. This testimony is not credible. According to Mr. Barron, who also attended the party, there were only fifteen to twenty people at the party. If Mr. Schoditsch had really wanted to, he could have stopped the drinking. Mr. Schoditsch had no intention of stopping the beer drinking. And Mr. Guzalak did not expect him to. Even after Mr. Guzalak saw students drinking beer he did not leave immediately. According to his own testimony, he stayed another twenty-five to thirty minutes after he saw students drinking and even took time to go speak to a student, Jodie Brooks, before leaving. The weight of the evidence failed to prove whether Mr. Guzalak drank alcohol while at Mr. Schoditsch's home. Although Mr. Barron thought Mr. Guzalak was drinking a mixed drink because he was drinking out of Mr. Schoditsch's cup or glass, Mr. Barron did not testify about how he knew that Mr. Schoditsch was drinking a mixed drink. Use of Profanity. It is against the policy of the School Board for a teacher to use profanity in the presence of students. Mr. Guzalak used the term "fucking" in front of several students when he became angry about their use of squirt guns on a forensic competition trip. The weight of the evidence failed to prove that Mr. Guzalak used profanity in the classroom. Supervision of Students on Trips. The weight of the evidence failed to prove that Mr. Guzalak failed to provide adequate or required supervision of students while on school trips. Mr. Guzalak's Resignation from the School Board. Ultimately, several teachers became aware of various rumors about Mr. Guzalak and some of his inappropriate behavior with students. Those comments were reported to Mr. Bounds, who spoke to a few students and then reported the problem to Ms. Lee. The Superintendent of Okaloosa County Schools met with Mr. Guzalak in March 1992, and discussed the various allegations against him. Mr. Guzalak subsequently resigned, effective at the end of the 1991-1992 school year. Credibility of the Witnesses. Mr. Guzalak and the students who were most involved in the incidents at issue in this proceeding denied that most of the more serious accusations against Mr. Guzalak are true. In addition to denying the accusations against him, Mr. Guzalak also suggested that he is the victim of unfounded rumors. Finally, Mr. Guzalak questioned the credibility and motives of some of the witnesses who testified in this proceeding. The denials of Mr. Guzalak and those students who supported his version of events have been rejected. Based upon the weight of the evidence, Mr. Guzalak's testimony was not convincing. The denial of the accusations by several (but not all) of the witnesses called by Mr. Guzalak was also not credible and has been rejected. Many of those witnesses are young men who have developed a close relationship to Mr. Guzalak. They consider Mr. Guzalak to be their "friend." Their testimony reflected their desire not to betray their "friend" and has been rejected in large part based upon the weight of all of the evidence. The efforts to suggest that Mr. Guzalak is merely a victim of rumors also failed. Rumors were caused, in part, because of the perception that Mr. Guzalak was different or eccentric, and, in part, because of the incidents described in this Recommended Order. While there were no doubt rumors concerning this matter and Mr. Guzalak, the incidents which have been found to have occurred in this Recommended Order are based upon the specific knowledge of those witnesses found to be credible. Many of those incidents were confirmed or substantiated by more than one witness. Finally, the efforts of Mr. Guzalak to discredit some of the witnesses also failed. Most of those efforts were directed at Sarah Stimac, Chris Hutcherson and Aaron Utley. The testimony of Ms. Stimac, Mr. Utley and most of the other witnesses called by the Petitioner was credible. It is true, however, that Mr. Hutcherson's testimony contained inconsistencies and that Mr. Hutcherson evidenced an extremely bitter and judgemental attitude against Mr. Guzalak. Consequently, Mr. Hutcherson's testimony has not been accepted except to the extent that it has been corroborated by other evidence. Attacks on Ms. Stimac's credibility are rejected. The suggestion that Sarah Stimac was not credible fails to consider, among other things, the fact that Ms. Stimac's actions in this matter were taken at some personal expense and aggravation. Mr. Guzalak, during the investigation of this matter by the EPC, allowed several students to read confidential statements that Ms. Stimac and other students had given during the investigation. He did so without regard to the consequences to Ms. Stimac or the other students. As a result, Ms. Stimac has faced hostility and ridicule from those misguided students who believe that not telling, or "ratting," on a friend is admirable. Despite such hostility, Ms. Stimac refused to compromise her integrity. The weight of the evidence proved that other students, such as Aaron Utley and David Barron made the same choice that Sarah Stimac made. Rather than lacking credibility, Ms. Stimac's testimony, Mr. Barron's testimony, and the testimony of most of the other students who spoke out about Mr. Guzalak's inappropriate conduct is admirable. The Impact of Mr. Guzalak's Actions on His Ability to Perform His Duties Effectively. There was no direct evidence to prove that Mr. Guzalak was not effective in the classroom. Most of the witnesses agreed that Mr. Guzalak was very effective in the classroom. Several of the witnesses spoke of Mr. Guzalak's intelligence and ability with some admiration. Unfortunately, Mr. Guzalak, by his own admission and based upon the facts presented in this case, has evidenced a lack of the judgement necessary for him to be entrusted with the education of young people. This fact is based upon the nature of the improper acts which Mr. Guzalak has been found to have committed in this case and by his attitude about the warnings he received from Mr. Smith, Mr. Bounds, Ms. Lee and even Mr. Guzalak's coworkers. A teacher that drinks alcohol in the presence of students and provides alcohol to, or condones the use of, alcoholic beverages by students has lost his or her effectiveness as a teacher because of the high standard of conduct expected of teachers. A teacher that uses marijuana in the presence of students or allows students to use marijuana in his or her presence has also lost his or her effectiveness as a teacher. Mr. Guzalak's conduct was, therefore, contrary to the conduct expected of him by the School Board and the community. Mr. Guzalak's conduct is sufficiently notorious in the community that he has lost his effectiveness as a teacher. Mr. Guzalak's inability to follow the directions of his supervisors has also reduced his effectiveness as a teacher. Mr. Guzalak probably has begun to take too much stock in the praise he has received concerning his intelligence and abilities. He has begun to believe his "reviews." As a result, Mr. Guzalak believes that he knows more about how to be an effective teacher than his supervisors and fellow teachers. Mr. Guzalak was asked during the hearing why he had a problem with Mr. Bounds' directive concerning his student friendships. Mr. Guzalak's response, which evidences his attitude about the appropriate role of a teacher with his or her students, was as follows: Because I was used to the idea at that point of having some social contact with students. It was important to me. I was, basically, disturbed because I felt that Richard Bounds was asking me to suddenly make some sort of major capitulation, not in my life-style, but in my mode of thought, in the way I viewed my relationship with students. He wanted me to be an authoritarian clone, if I must. Lines 18-25, Page 627 and Lines 1-2, Page 628, Vol. IV of the Transcript. Additionally, Mr. Guzalak answered the following questions: Q. [Mr. Bounds is] your principal. Shouldn't he be allowed to tell you how you should behave with your students? A. No. Q. He shouldn't be able to tell you how you conduct yourself with your students? A. No. Q. Why not? A. Because I'm an adult and because I'm a professional. And I'm capable of making those decisions on my own. . . . . Lines 17-25, Page 628 and Lines 1-2, Page 629, Vol. IV of the Transcript. Rather than being an "authoritarian clone," Mr. Guzalak attempted to reach some of his students by being their friend on their level. To some extent, he was influenced by Ms. Yeager, who developed friendships with her students. Ms. Yeager, however, was more mature, married, had a family and had been teaching for some time. As Ms. Yeager put it: . . . . Of course, I have an advantage, being an old, married woman. I mean, I had a husband. I had a family. I had a track record when I came here, Ms. O'Sullivan. I taught seven years junior high and two more years in high school. So I think age -- Not all people are respected because they're older, as you know. But, I'm saying I sort of had an edge there on John [Guzalak], plus experience. Lines 19-25, Page 375 and Lines 1-2, Page 376, Vol. III of Transcript. More importantly, Ms. Yeager, by her actions, her character and her good judgement, was able to develop a certain level of friendship with her students while maintaining her distance and her professionalism. Mr. Guzalak has not evidenced the ability to do the same because of his lack of judgement and his inability to heed the advice and experience of his supervisors and peers.
