The Issue The issues presented are whether Respondent committed the acts alleged in the Administrative Complaint and by doing so violated Sections 1012.795(1)(d), 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), (e) and (f). If one or all of the violations alleged are proven, what penalty would be appropriate?
Findings Of Fact Respondent is licensed as a teacher in Florida, and has been issued Florida Educator's Certificate 449960. Her certificate covers the area of mentally handicapped, and expires June 30, 2013. During the 2008-2009 school year, Respondent taught at Chaffee Trail in Duval County, Florida. She was assigned as an exceptional education teacher in a self-contained classroom for trainable mentally handicapped students in the first through third grades. Respondent generally had eight to eleven students in her class, and was aided by a paraprofessional, Julie Brooke. Respondent's classroom was on the first-grade hallway. One of Respondent's students was a nine-year-old named C.L. C.L. was a thin, frail, African-American student who, at the time of the incidents giving rise to these proceedings, was approximately four feet, four inches tall and weighed approximately 60 pounds. He was described as very low functioning, with an IQ in the 40's. Despite his significant limitations, C.L. was an active, friendly child who had a tendency to wander and needed redirection. His IEP included specific strategies for dealing with behavior problems in the classroom. Ms. Brooke worked with C.L. daily and he often sat at her desk to work on his assignments. They got along well together. November 18, 2008 On November 18, 2008, there were only four or five students in Respondent's class, because a number of students were absent. That morning, Ms. Brooke took another student to the office because he had been misbehaving. On her way back to Respondent's classroom, she heard loud voices and screaming coming from Respondent's classroom and recognized the voices as those of Respondent and C.L. When she entered the classroom, Ms. Brooke saw Respondent sitting in an office chair, holding C.L. face down on the floor with both of his arms twisted behind his back. Respondent appeared to be pushing C.L. down so that his face and body were pressed against the floor. C.L. was screaming and crying and appeared to be frightened. Ms. Brooke walked over to her desk and sat down. C.L. wanted to go over to Ms. Brooke, but was not allowed to do so. Respondent let him get up, but pinned him into the corner of the classroom near the door, by hemming him in with her chair. Respondent was facing C.L. and pressing the chair against his body, while he continued to scream and cry. About this same time, Assistant Principal Wanda Grondin received a call from a substitute teacher in another classroom on the first-grade hallway, complaining that there was yelling going on that was disturbing her classroom. Ms. Grondin went to the first-grade hallway, and could also hear yelling that was coming from Respondent's classroom. As Ms. Grondin approached the classroom, the yelling stopped. As she entered the room, she saw Respondent sitting in the office chair, with C.L. pinned in the corner of the room, held there by Respondent's chair. C.L. was crying and fighting back. Respondent indicated that he had refused to do something and she was trying to calm him down to give him options. Upon Ms. Grondin's arrival, Respondent slid her chair back, and C.L. fell into Ms. Grondin's arms, crying. Respondent told C.L. that he could now go to Ms. Brooke. C.L. went to Ms. Brooke and she comforted him and gave him some work to do. Later in the day, Ms. Brooke reported to Ms. Grondin that another child in the classroom, M.C., had reported to Ms. Brooke that Respondent had twisted C.L.'s arm and had locked him in the closet in the classroom. Although there was testimony presented regarding conversations that Ms. Grondin, the principal and the guidance counselor had with M.C., and his description of what allegedly happened to C.L., neither M.C. nor any other person who actually witnessed C.L. being locked in the closet testified at hearing. December 16, 2008 Brian Harvell is a first-grade teacher whose classroom is across the hall from Respondent's. On December 16, 2008, he was in his classroom when he heard loud voices and banging noises. Mr. Harvell walked out into the hallway and saw Respondent with C.L., struggling in the doorway. Respondent had her back against the doorframe, and one arm around D.L.'s torso and one of C.L.'s arms twisted behind his back. Mr. Harvell approached Respondent and C.L., and she stated, "Look what's happening in my classroom." When he looked past her, it appeared that a desk had been turned over. C.L. was squirming and crying out while Respondent restrained him. At that point, Mr. Harvell stated, "C.L., come to me." Respondent released C.L. and he walked over to Mr. Harvell, who took him to his classroom. In the classroom, he showed him a carpeted area and a toolbox full of cardboard books. C.L. sat and played quietly for approximately 15-20 minutes, until Ms. Brooke came for him. Mr. Harvell reported the incident to Ms. Grondin. It is not appropriate to control a student by twisting his arm behind his back, pinning him into a corner, or pushing his face toward the floor. It is especially inappropriate to subject a small, frail, mentally handicapped child of C.L.'s size and capacity to such methods of restraint. Respondent was removed from Chaffee Trail on December 19, 2008, as a result of the incidents involving C.L. Her employment with the Duval County School District was terminated in February 2009. The allegations against Respondent were reported in both the print and broadcast news media. The incidents in question also prompted complaints to be filed with the Department of Children and Family Services, and investigations were conducted by DCFS to determine whether there were indicators for child abuse. However, the investigations by DCFS do not address violations of professional standards governing teachers, and the findings are a result of evidence that is different from that presented at the hearing in this case.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Subsections 1012.795(1)(d),(g) and (j), Florida Statutes, and Florida Administrative Code Rules 6B-(3)(a),(e) and (f), and permanently revoking her certificate. DONE AND ENTERED this 24th day of November, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2010.
The Issue The issues are whether Petitioner has just cause to discipline Respondent for restraining a student with disabilities, in violation of Petitioner’s policy 5.181(4)(a), (4)(b)(iv), and (6)(d)(iii)(A), and, if so, whether Petitioner may depart from progressive discipline and impose a one-day suspension, as provided by the Collective Bargaining Agreement Between Petitioner and The Palm Beach County Classroom Teachers Association (CBA).
Findings Of Fact Respondent is a certified ESE teacher and has taught ESE classes for 12 years. Since 2012, Respondent has taught at Royal Palm School, which is an ESE center operated by Petitioner for students ranging in age from 3 to 22 years. During the 2014-15 school year, as well as summer school of 2015, Respondent taught a K-1 class of mostly five- and six-year-olds in an intellectual disabilities class. At the start of the 2014-15 school year, Respondent's classroom consisted of 12 ESE students, although Respondent's class, by the end of the school year, consisted of 11 students and, in summer school, 9 students. At the start of the school year, the principal assigned two aides to Respondent's classroom. The students' disabilities were varied. Student 10 suffers from Down Syndrome, has deficits in vision and hearing, and was the most cognitively challenged of the students in the class. Student 10 used a "chew toy" for oral stimulation, wore diapers, and required full assistance when eating. He was unaware of danger and required adult supervision at all times, including a curb-to-curb escort on arriving and leaving school. Student 10's delays in cognition, communication, and social/emotional development limited his interactions with adults and peers. Based on his May 2015 IEP, by the end of the school year, Student 10 still could not attend for more than five seconds in response to an adult voice, required hand-over-hand assistance to mark paper, demonstrated no hand dominance, repeatedly grabbed nearby items and placed them into his mouth for oral stimulation, could not maintain eye contact, and (if permitted) wandered about the classroom climbing onto chairs and tables or spinning in continuous circles. He was unable to walk more than 300 feet on uneven surfaces independently without losing his balance and engaged in various behaviors, likely to self-stimulate or to modulate stimulation, including rocking side to side while standing or rocking his chair back and forth while sitting. Student 10 had rocked his chair the prior school year until his teacher placed the chair against a wall, so he could not rock it. Student 11 was aggressive and would slap, kick, bite, spit, and throw things at adults and peers. Another student was blind and defenseless. Student 11 had bitten this student once and had tried to bite him on another occasion, so adults had to ensure that Student 11 could not get at the defenseless student, who had been attacked on two other occasions by other students. Another student suffers from Dandy Walker Syndrome, which involves swelling of the cerebellum due to the collection of intracranial fluids. She is deaf, tends to aspirate her food, suffers seizures, has limited mobility, and is highly aggressive. Another of the students has a serious liver disorder, so that the consumption of certain foods could be deadly. Although her mother sent food to school every day, the student tried to take other students' food and eat it. She also must be kept from bending over, which may necessitate emergency hospitalization. Another student is developmentally disabled, deaf, and blind. These five students required one-on-one adult supervision as much of the time as adult staff was available to provide it. In addition to Student 10, four other students were diagnosed with Down Syndrome. One of these students was limited to baby food and tried to escape from the classroom every time he approached the door. He also threw things at other students. One of the other students with Down Syndrome is much less mobile, but constantly pushed over chairs. Much time of the adults in Respondent's classroom was spent in toileting. Ten of the students were still in diapers. These students required considerable assistance in the bathroom to avoid accidents that would leave the area soiled with feces. One aide estimated that nine of these students averaged four diaper changes daily; the tenth--the student with the liver condition--required six or seven diaper changes daily. She estimated that an aide would spend an average of three minutes changing a wet diaper and six minutes changing a soiled diaper, which, she testified, occurred with a high frequency. The aide added that considerably more time was involved if the child's clothing also required changing, but she did not estimate the frequency of this occurrence. Ignoring clothing changes, toileting activities thus consumed at least three hours daily of aide time. Aides were also required to devote one hour daily to hall duty and substantial blocks of time to serving breakfast and assisting with children leaving or entering buses or other transportation. In sum, due to these responsibilities, half of an aide was not available for supervision in the classroom during instruction or transitions. The principal's assignment of two aides to Respondent's classroom was based on Petitioner's policy of one aide per every six ESE students. Although the staffing of Respondent's classroom conformed to Petitioner's staffing policy, at the start of the 2014-15 school year, Petitioner and her two aides were overwhelmed by the needs of their 12 students, prompting Respondent to seek help from her administrators. The principal agreed to provide Respondent relief if the District office approved the creation of another classroom at Royal Palm School. However, the enrollment at the school failed to meet the threshold for the addition of another class. In the alternative, the principal directed other persons, including an occupational therapist, physical therapist, varying-exceptionalities teacher, deaf-and-hard-of-hearing teacher, speech-language pathologist, and behavior resources teacher, to meet and find a solution for Respondent. The group appointed by the principal met four times in November 2014 to devise a plan to help Respondent with her entire class. The first meeting took place on November 7, 2014, with 13 attendees, including Respondent. Although the principal did not attend the first two meetings, the perspective of the administration was presented by the behavior resources teacher, who led off the meeting by acknowledging that the principal had asked them to identify ways to help Respondent better meet the "safety and needs" of her students using existing staff. Respondent spoke next, stressing the need for "additional staff" and distributing a handout describing her students in general terms. The behavior resources teacher suggested splitting the class in two by allowing aides and "support staff" to use an adjacent, underused room to teach half the class while Respondent taught the other half. Respondent stated that she needed another aide. In addressing a suggestion that an aide might volunteer to help out in Respondent's classroom, one of the existing aides mentioned that the other aides knew of the problems, such as children removing their clothes and one child playing with his stool, so any aide would have to be assigned. Someone asked if the classroom was set up for "good teaching," and Respondent replied, "yes, but we have serious danger issues." The existing aide noted staffing deficiencies, but the behavior resources teacher answered, "Do the best with the people we have now." The meeting concluded with several persons offering to supervise some of Respondent's students during parts of the day, but a unique aide to one child worrying that she and the nurse would be exposed to potential liability if they were expected to serve the needs of any students besides the single student to whom they were assigned. A few days later, a group of 10 persons reconvened. The minutes of this meeting conclude that all staff was willing to try to help Respondent, there was a "great need for additional help to assist with toileting and general assignments throughout the day," and Respondent continued to insist on additional staff. One week after the first meeting, 14 persons met for a third meeting. This group included Respondent, the principal, and the assistant principal. Attendees addressed the changes that had already been made, including greater use of the adjacent room effectively to reduce the ratio of students to adults in Respondent's classroom. The principal agreed to hire a third aide. The group discussed that students were overturning furniture and changes were needed to avoid injury to someone. Someone had suggested bigger tables--presumably, too heavy for the students to overturn--and the appropriate person was trying to locate some. The final meeting took place on November 24, 2014, with 13 attendees, including Respondent, the principal, and the assistant principal. A discussion of Student 11 mentioned the proper use of a Rifton chair, which is equipped with a lap belt. The behavior resources teacher emphasized that the chair must be used properly, and the assistant principal added that it may not be used for restraint. The third aide had been assigned to the classroom, and Respondent reported that she had helped a lot. About three weeks later, during the final week of school before winter break, Respondent reported to the behavior resources teacher that the behaviors in her classroom had improved and transitions were proceeding smoothly. Respondent did not elaborate at the hearing on the effect of the behavioral improvements that followed the assignment of a third aide to her classroom toward the end of the first semester of the 2014-15 school year. Clearly, adult time was consumed partly by dealing with maladaptive behaviors, but many of the time-consuming features of the class, as described above, were not behavioral, at least in the sense of their amenability to dramatic change: for example, the demanding toileting needs of all but two of the students; Student 10's cognitive challenges, unawareness of danger, need for oral stimulation, need for hand-over-hand assistance to mark a paper, and spinning, rocking, and tendencies to climb atop the furniture; and the extraordinary needs of the students with Dandy Walker Syndrome, the liver disorder, and development disability with blindness and deafness. The CBA authorizes discipline of employees for "just cause." CBA, Art. II, § M, ¶ 6. Petitioner is required to impose progressive discipline, which, in ascending order, is a verbal reprimand with a written notation, written reprimand, suspension without pay, and dismissal. CBA, Art. II, § M, ¶ 7. Petitioner is limited to progressive discipline "[e]xcept in cases which clearly constitute a real and immediate danger to the District" or "the actions/inactions of the employee constitute such [sic] clearly flagrant and purposeful violations of reasonable school rules." Id. Petitioner has failed to prove just cause for disciplining Respondent in connection with Student 11. Petitioner failed to prove the material allegations involving Student 11 other than that, when he became overstimulated and unruly, Respondent directed him to sit on a bean bag chair in the back of the room so that he could recompose himself before returning to his seat. This directive was entirely reasonable, especially given Student 11's above-noted proclivity toward biting and spitting upon his neighbors and staff, including one particularly vulnerable child. The evidence fails to establish that any adult folded up Student 11 "like a taco" in the bean bag chair or directed Student 11 to fold himself up in the chair. It is possible the sides of the chair could have been pulled up to interfere with the occupant's sight line of something that had been distracting him or someone he had been assaulting, but no evidence suggests that pulled-up sides substantially blocked Student 11's view of the room or that the sides would remain pulled up for very long. When giving a statement to Petitioner, Respondent's casual description of her use of the bean bag only underscores that its use was innocuous; this statement did not constitute, as Petitioner contends, a concession of child abuse in an unguarded moment during an intensive interrogation. On this record, the evidence fails to prove that Respondent's use of the bean bag chair was in any way inappropriate, and Student 11 is not further addressed in this recommended order. On the other hand, Petitioner has proved just cause for disciplining Respondent in connection with Student 10. Petitioner proved that, in violation of Petitioner's policy governing the restraint of ESE students, on several occasions, Respondent attached a bungee cord to the legs of Student 10's chair, stretching the cord around the legs of the table at which Student 10 sat. The cord did not touch Student 10, unless he could reach it with his feet, nor did the cord force the chest or stomach of the child to press against the edge of the table. But tethering the chair to the table prevented Student 10 from pushing his chair back from the table to get out of the chair without assistance from an adult. It is not entirely clear when Respondent first used the bungee cord to restrain Student 10. She applied the bungee cord for not more than one hour at a time when one of the aides was at lunch or unavailable in the classroom due to toileting or other duties that removed her from direct contact with the students, and Student 10 was rocking in his chair, at risk of tipping over. This practice clearly took place after the addition of the third aide to the classroom. At no time did Student 10 acknowledge the presence of the bungee cord or indicate any embarrassment at its use. Respondent's use of the bungee cord was not a means to punish Student 10. Respondent's use of the bungee cord was not for her personal convenience, such as to permit Respondent to escape her instructional and supervisory duties during the school day. Respondent's use of the bungee cord was to protect Student 10 from tipping over his chair and harming himself while allowing Respondent and the aides to monitor more closely other vulnerable students. Respondent worked hard to obtain help in her classroom, and administrators responded with a third aide. It seems that the additional adult may have helped with the more behavioral problems. But the more intractable issues presented by the students still had to be managed, and Respondent continued to advocate for the needs of her students. At one point during the school year, Student 10's mother gave to Respondent a prescription for occupational therapy, physical therapy, and speech therapy. Respondent delivered this prescription to the school's occupational therapist, who said they would evaluate Student 10, but not until the end of the school year, despite the fact that the child obviously suffered from significant deficits that are properly addressed by occupational therapy. The record provides no support for a departure from progressive discipline. If every violation of the policy restricting the restraint of ESE students justified a departure from progressive discipline, the policy and perhaps the CBA should so provide, but they do not, so it is necessary to analyze the circumstances of Respondent's violation from the perspective of the language of the CBA's departure clause. In general, Petitioner has failed to prove by clear and convincing evidence that Respondent's use of the bungee cord clearly constituted a real and immediate danger to the District. Not a natural person, the District is most obviously jeopardized by legal liability. There is no evidence of the reaction of the mother of Student 10 upon being told of the use of the bungee cord with her son. There is no evidence of any legal action that has been commenced or is likely to be commenced by Student 10's mother, any advocate for disabled students, or any federal or state agency responsible for monitoring compliance with the Individuals with Disabilities Education Act. Investigations by the Department of Children and Families and Petitioner's police were closed without any action. Nor has Petitioner proved by clear and convincing evidence that Respondent's acts and omissions constitute clearly flagrant and purposeful violations of reasonable rules. The reference to "reasonable" rules is puzzling, as though some rules are not reasonable, but, if it must be said, Petitioner's policy restricting the restraint of ESE students is reasonable. Also, Respondent's violation was purposeful. Admitting that she never told any administrator about her use of the bungee cord, Respondent testified that she did not know that her use of the cord violated Petitioner's policy against restraints when applied to ESE students. If Respondent meant that she was unaware of Petitioner's policy addressing the restraint of ESE students, this testimony is discredited. Even the aides understood that there was a general prohibition against restraining ESE students. Also, during one of the four meetings in November 2014, one or two participants alluded to the policy. Lastly, generous portions of the policy are incorporated in the CBA. If Respondent meant that she was unaware that her use of the bungee cord violated Petitioner's policy, this testimony also is discredited. The purpose of the bungee cord was to restrain Student 11, and the policy broadly restricts the restraint of ESE students. Petitioner thus proved that Respondent's violation was purposeful because she knew of the policy restricting the restraint of ESE students, knew that the bungee cord restrained Student 10's freedom of movement, and knew that her use of the bungee cord violated the policy. The CBA requires, though, that the violation also be flagrant. Flagrant means " conspicuously offensive <flagrant errors>; especially: so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality <flagrant violations of human rights>." http://www.merriam- webster.com/dictionary/flagrant. The bungee cord itself was inconspicuous, as it extended a few inches about the floor under a chair and a table amid a classroom of tables and chairs. No administrator who happened by Respondent's classroom for the several months that the bungee cord was in intermittent use ever noticed it. Other students appeared not to notice the use of the bungee cord, as Student 10 suffered no embarrassment from the use of the bungee cord in this manner. Respondent's use of the bungee cord was not conspicuously offensive. All three aides witnessed Respondent's use of the bungee cord for several months, but said nothing and did not seem to think that the use of the bungee cord presented much, if any, of an issue. The third aide, who had worked only part of the school year, mentioned the bungee cord to the assistant principal, but primarily as support for her complaint that Respondent's summer-school class of nine students could not be served by only two aides. A conspicuously offensive act would have generated more dramatic responses from the aides. Respondent's motivation in using the bungee cord also undermines a finding of flagrancy. As noted above, the class presented serious demands on the four adults. Especially when one or two aides were unavailable due to other duties, the bungee cord kept Student 10 from harming himself and allowed Respondent and the available aide or aides to better serve the other children, as in preventing one from striking a particularly vulnerable child, preventing one from eloping, and preventing one from bending over or eating others' food, or providing a few extra minutes of direct support to a developmentally disabled child who could neither see nor hear what was going on around him. Respondent's use of the bungee cord did not expose Student 10 to an unreasonable risk of personal harm. An adult could quickly remove him from the tethered chair, probably more quickly than she could remove a child strapped into a Rifton chair. In no way did this restraint pose as much risk as that posed by one or more adults’ grasping and holding a child, say, pinned to the ground. Student 10 could not self-evacuate with or without the bungee cord. Whatever theoretical risk of harm was posed by the few seconds that it would take for an adult to push the tethered chair back to allow Student 10 to get out of his chair was more than offset by the gain in safety from stopping the climbing atop furniture and tipping the chair back. When administrators at Royal Palm School learned of Respondent's use of the bungee cord during summer school in 2015, they immediately removed Respondent from her teaching assignment under her summer-school contract, without pay, for the remaining 12 days of summer school. The following year, she was assigned alternative duties that did not involve student contact, but was paid at her regular rate.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for disciplining Respondent for a violation of Petitioner’s policy 5.181(k)(ii) in connection with the restraint of Student 10, issuing a verbal reprimand with a written notation instead of the proposed one-day's suspension, and denying Respondent's claim for back pay. DONE AND ENTERED this 16th day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2016. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Law Office of Thomas L. Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Jean Marie Middleton, Esquire Laura E. Pincus, Esquire School Board of Palm Beach County Office of General Counsel 3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issue is whether respondent's educator's certificate should be disciplined for the reasons cited in the administrative complaint filed on November 7, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Richard T. Vaughn, Jr., is licensed as a teacher having been issued Florida Educator's Certificate 678116 by the Department of Education. The certificate covers the area of sociology and was valid through June 30, 1995. When the events herein occurred, respondent was employed as a mathematics teacher at the Marion Regional Juvenile Detention Center (MRJDC) and The Phoenix Center in the Marion County School District. Based on conduct which occurred during school year 1993-94, on May 19, 1994, respondent was suspended from his teaching position by the Marion County School Board (Board). After an administrative hearing was held in December 1994, a final order was entered by the Board on March 31, 1995, terminating respondent for misconduct in office, incompetency, and willful neglect of duty. After learning of the Board's action, and conducting a further inquiry, petitioner, Frank T. Brogan, as Commissioner of Education, issued an administrative complaint on November 7, 1995, alleging that respondent's conduct also constituted a sufficient ground to discipline his teacher's certificate. The charges stem from incidents which allegedly occurred while respondent taught at MRJDC from September 1993 until April 7, 1994, and at The Phoenix Center from April 8, 1994, until May 17, 1994. In his request for a hearing, respondent has denied all material allegations. During most of school year 1993-94, respondent taught at MRJDC, which is a detention facility for students who are awaiting trial on criminal charges. As might be expected, the students at MRJDC "are very difficult to work with." At hearing, respondent's supervisor established that respondent had "difficulty" with his work, he was "uncooperative" with other faculty and staff, and he had "problems" with his peers. His behavior was generally described by all witnesses as being "bizarre" and "irresponsible." On some occasions, he would become angry with his students and "storm" out of his classroom leaving the students unsupervised. While respondent was teaching at MRJDC, it was necessary for the principal of the school's education center to meet with respondent because he would not speak to any of his colleagues. Respondent took the position that speaking with his peers was not in his job description, and thus it was unnecessary for him to do so. Although admonished by the principal to communicate with his peers, respondent continued to be abrupt and uncommunicative. During his tenure at MRJDC, respondent exhibited irrational and explosive behavior while teaching his classes. For example, he frequently engaged in screaming tirades against students who failed to meet his disciplinary expectations. In addition, it was not unusual for respondent to be confrontational with his students, and if threatened by one, he would challenge the student to carry out the threat, or to meet him outside the classroom to resolve the matter. Respondent's pattern of explosive behavior at MRJDC culminated on April 7, 1994, when the MRJDC superintendent was called to respondent's classroom to resolve an "emergency" situation. As it turned out, a student had thrown some pencil lead, hitting respondent in his glasses. Respondent began yelling at the student and challenging him to come outside the classroom and "take him on" to settle the score. When the superintendent arrived, she asked respondent to leave campus for the remainder of the day. However, respondent became abrupt and confrontational with the superintendent, initially refused to leave, and continued yelling at the student for another five minutes. Because of respondent's pattern of irrational and explosive behavior throughout the school year, and his loss of effectiveness as a teacher at MRJDC with both his colleagues and his students, a decision was made to transfer respondent to The Phoenix Center, an alternative education school, in order to give him one final opportunity. Effective April 8, 1994, respondent was reassigned to The Phoenix Center as an exceptional student education teacher. His class consisted of no more than four or five students. Despite the small number of students, respondent continually called the dean of students to resolve disciplinary problems which arose in his classroom. It can be reasonably inferred that respondent lacked the necessary demeanor and temperament to effectively manage and control his classroom. On May 3, 1994, respondent was described as being "incoherent" and "in a rage" while engaged in an altercation with a student who had threatened him. While the student was being led from the classroom to the principal's office by the dean of students, respondent became "agitated" and followed the student down the hallway continuing to challenge him to carry out his threat. Although ordered by the dean to return to the classroom, respondent initially refused to do so. Respondent's explanation for his conduct was that he was trying to prove a point with the student. For at least the second time that school year, respondent was instructed by the principal not to challenge students who had made threats. By engaging in the conduct described in the previous finding of fact, and that described in findings of fact 6 and 7, respondent intentionally exposed his students to unnecessary embarrassment or disparagement. On May 6, 1994, while coaching a school softball team, respondent became outraged over a call by the umpire and left the campus without permission. During his absence, the students were unsupervised. On May 17, 1994, respondent was returning to campus in his automobile when he approached a group of students in the roadway. One female student ignored her teacher's request to move and intentionally remained in the middle of the road. As he approached the student, respondent gunned his engine and drove straight for the student but hit his brakes stopping just short of her. Respondent later explained that he was merely trying to prove the point that if a student remained in the road with a car approaching, she would "be in trouble." By engaging in this conduct, respondent failed to make a reasonable effort to protect a student's physical safety. By virtue of his personal conduct over the school year at both MRJDC and The Phoenix Center, respondent's effectiveness as a classroom teacher has been seriously reduced.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, revoking his certificate for one year, allowing him to reapply for an educator's certificate only upon certification by a mental health professional that he is competent and capable of performing his duties as an educator, and upon reemployment, placing him on probation for a period of three years. DONE AND ENTERED this 18th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1996. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Carl J. Zahner, II, Esquire Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Richard T. Vaughn, Jr. 1731 26th Street, South St. Petersburg, Florida 33712
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Whether Petitioner has just cause to terminate the Respondent's employment as an educational support employee.
Findings Of Fact Respondent was employed as a behavioral interventionist with the Palm Beach County School District during the 2000-2001 school year. A behavioral interventionist is a non- instructional employee who works primarily with students receiving services through Petitioner's Exceptional Student Education (ESE) Programs. In addition to monitoring performance and behavior of ESE students, Respondent supervised regular education students who were serving in-house suspensions, performed bus and cafeteria duty, and helped maintain discipline throughout the campus. Respondent also served as an assistant football coach. Respondent received specialized training in order to perform his duties as a behavioral interventionist. He received child development training and attended approximately 12-13 workshops dealing with physical restraint and conflict resolution issues. Respondent is not a member of a collective bargaining unit. At the times pertinent to this proceeding, Student 1, a male, was 17-years old and a junior at Forest Hill. Student 1 is 5'10" tall and weighs approximately 260 pounds. Respondent is 6'3" tall and weighs approximately 250 pounds. Respondent is a former professional football player who routinely lifts weights. On December 11, 2000, between 4:30 p.m. and 5:00 p.m., Student 1 was in the area of the outdoor basketball court watching a basketball game. Student 1 had permission to be on the campus of Forest Hill, but he should not have been in the area of the outdoor basketball court. Respondent was in the weight room at Forrest Hill that afternoon demonstrating weight lifting techniques to a group of his football players. After he completed his weight lifting workout, Respondent went to the outdoor basketball court to play basketball. Respondent began playing basketball with a group of students, including students who did not play football. Student 1 could have played if he had wanted to do so. Student 1 was not playing when the acts at issue in this proceeding occurred. Shortly after the game began, Student 1 was standing off the basketball court observing the game when the basketball ball was thrown out of bounds near him. Respondent walked up to Student 1 and said, "why don't you get the ball fat boy?" In response, Student 1 used profane language and was disrespectful towards Respondent. Respondent reacted by tapping Student 1 on the cheek with his open hand. Student 1 asked Respondent why he hit him, but received no response. As Student 1 attempted to walk away, Respondent tapped him again on the back of the head and the two exchanged words. Respondent was not justified in making physical contact with Student 1. Student 1 again addressed Respondent using profane language. Respondent reacted by taking Student 1 to the ground using a technique that he had been trained to use to restrain students. There was a conflict in the evidence as to whether Respondent placed Student 1 in a chokehold when he took him to the ground. The greater weight of the credible evidence established that Respondent did not use a chokehold on Student 1. There was also a conflict in the evidence as to whether Student 1 had become aggressive and whether Respondent was merely trying to restrain Student 1. The evidence is clear that Respondent physically restrained Student 1 because Student 1 had been disrespectful towards him, not because Student 1 had become combative. Respondent was not justified in physically restraining Student 1. Student 1 was on the ground when Respondent released him from the restraining hold. As Student 1 was attempting to rise, Respondent hit him with his forearm, which forced Student 1 back to the ground. Witnesses at the basketball court told Student 1 to stay down, but he attempted to rise and saw Respondent in a three-point position typically assumed by football linemen. Almost immediately, Respondent came at Student 1 again and forearmed him back to the ground. Student 1 fell back to the ground, biting his tongue as he went down. He then got up and began cursing. After an interval of a few minutes, Student 1 asked Respondent why he had hit him and began to spit in the general direction of Respondent. Respondent, believing that Student 1 was spitting at him, grabbed him in the area of the neck and forced him against the fence surrounding the basketball court. Respondent told Student 1, "Don't play with me boy, I'm not a kid." Respondent was not justified in that use of force against Student 1. The incident lasted over a period of several minutes. Student 2 was present during the entire incident and Student 3 was present during the latter part of the incident (when Respondent grabbed Student 1 by the neck and forced him against the fence). Both witnesses corroborated Student 1's version of the events. No other student witnesses testified at the final hearing. Student 1 complained that afternoon to a coach named Coleman about what had occurred and he also told his mother later that evening when he got home. Student 1 complained to his mother that his neck hurt and she took him to a hospital, where he was diagnosed with a sprained neck. On December 12, 2000, Student 1 and his mother returned to the school and complained to Assistant Principal Mark Sagovac, about what happened the afternoon before. Mr. Sagovac thereafter spoke with Respondent, who did not deny the incident had occurred. Respondent admitted to Mr. Sagovac that he called Student 1 a "fat boy" and asked him to get the ball, which had rolled out of bounds. Respondent further told Mr. Sagovac that he pushed Student 1 to the ground with his forearm and forced Student 1 up against the fence because he felt Student 1 was threatening him. After speaking with Respondent, Mr. Sagovac interviewed Student 1 again and spoke to other witnesses. Some time thereafter a meeting was held between Student 1, his mother, Respondent, Mr. Sagovac, and Assistant Principal Green, who is also an assistant principal assigned to Forest Hill. The incident was discussed again and at one point, Respondent apologized to Student 1 and his mother. After the meeting concluded, Mr. Sagovac issued to Respondent a verbal reprimand with written notation for the actions he took on December 11, 2000. Prior to serving the Respondent with the verbal reprimand with written notation, Sagovac did not consult with his principal or anyone in the Petitioner 's Personnel Office or Office of Professional Standards to determine if he was complying with policy or if he was following accepted personnel practice concerning the contemplated discipline. Mr. Sagovac was not complying with school policy when he issued the verbal reprimand with written notation. Mr. Sagovac did not have the authority to discipline Respondent. Shortly after the conclusion of the meeting attended by Student 1, his mother, Respondent, and Mr. Sagovac, a complaint was made to the school district's police department concerning the December 11, 2000, incident. Based upon the complaint, a criminal investigation into Respondent's actions was initiated. There was no evidence as to the status of any criminal charges presented at the final hearing. Petitioner's Office of Professional Standards received information concerning the criminal investigation, which caused it to open its own administrative investigation. After the Office of Professional Standards received the police report and the attached documents, the case was assigned to an investigator. During the Petitioner's investigation, Respondent was placed on administrative leave with pay and assigned to duty at his home. This assignment became effective February 1, 2001. After Petitioner's Office of Professional Standards completed its investigation, it prepared a report of the incident and, consistent with its rules, submitted the case for review to a case management committee. Case management review is a process whereby approximately a dozen high level employees working for the district meet at the direction of the Superintendent to review pending personnel cases which may result in the suspension of employment without pay or the termination of employment. Respondent's case management committee determined that probable cause existed to sustain the allegation Respondent used inappropriate physical force on the student in question. Once probable cause was found, it further determined that the level of the force used warranted a recommendation that Respondent's employment be terminated. Based upon the case management committee's recommendation to terminate Respondent for having engaged in inappropriate physical force on a student, Superintendent of Schools Arthur C. Johnson notified Respondent by letter dated May 8, 2001, that he would recommend to the School Board at its meeting to be held May 16, 2001, that Respondent's employment be terminated and that he be suspended without pay pending the completion of the proceedings to terminate his employment. On May 16, 2001, the School Board voted to accept the Superintendent's recommendation. It is the policy of the Petitioner that no employee is to use physical force with a student unless the employee is breaking up a fight, acting in self-defense, or protecting the student from hurting him or herself.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
