The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated May 7, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Raymond J. Agostino, holds Florida Educator Certificate No. 385460, covering the areas of educational leadership, elementary education, and English to Speakers of Other Languages, which is valid through June 30, 2005. At all times relevant to this proceeding, Mr. Agostino was employed as an assistant principal at North Fort Myers High School in the Lee County School District. On the morning of May 16, 2003, at about 5:34 a.m., a 911 emergency call was received by the Cape Coral Police Department. A female voice could be heard screaming on the line. The 911 operator asked the caller to state the nature of the emergency. The caller did not identify herself but could be heard screaming, "Get the fuck off of me! Get the fuck off of me!" Michael Carroll, the 911 operator who received the call, testified that when he answers an emergency call, his equipment provides a readout of the caller's phone number and address. Mr. Carroll relays the call to the police department's dispatcher, who in turn dispatches officers to the indicated address. In this instance, the caller identification equipment indicated that the call came from a telephone with the number "458-5077." At the time, this was the phone number of Mr. Agostino and his wife, Pamela Agostino. They resided at 1943 Northeast Fifth Terrace in Cape Coral. Officers Don Donakowski and Jason Matyas of the Cape Coral Police Department were dispatched to the Agostino house at about 5:35 a.m. on May 16, 2003, and arrived in separate cars at about 5:39 a.m. From outside the house, they observed a shirtless male, later identified as Mr. Agostino, in the living room area. They did not see Mrs. Agostino. They knocked on the front door, and Mr. Agostino answered. The officers identified themselves, told Mr. Agostino why they had been sent to the house, and asked him what happened. Mr. Agostino told the officers that he and his wife had been arguing over financial matters but denied that there had been any kind of physical confrontation. Officer Matyas noted that Mr. Agostino was reluctant to provide details of the incident. The officers noted no visible injuries on Mr. Agostino. While talking to Mr. Agostino in the doorway, they observed Mrs. Agostino emerge from the master bedroom. Officer Donakowski went inside the house to speak with Mrs. Agostino, who appeared very emotional, scared, and crying. Officer Donakowski observed that she appeared to have been in a physical altercation. There were scratches and a lump over her right eye and dried blood in her hair. Mrs. Agostino told Officer Donakowski that she and her husband had an argument. She told Officer Donakowski that her husband was bipolar and sometimes would go on binges, including spending money he didn't have. Mrs. Agostino told Officer Donakowski that her husband asked her for a $500 check to pay the mortgage. She told him she didn't have the money, and he became angry and began screaming at her. Fearing for her safety, she ran into the bedroom and locked the door. When Mr. Agostino broke down the door to get to her, Mrs. Agostino grabbed the bedroom telephone and dialed 911. Mrs. Agostino told Officer Donakowski that when her husband saw her dialing 911, he threw her down, knocked the phone out of her hand, gouged at her eyes, and pulled out a handful of her hair. It was during this attack that she screamed at her husband to get off of her. Mrs. Agostino told Officer Donakowski that she was then able to escape her husband's grasp and run into another room. She also told Officer Donakowski that her husband had attempted to strangle her in a confrontation on the previous day. Mrs. Agostino told Officer Donakowski that she would not give a written statement because she feared retaliation from her husband. After he interviewed Mrs. Agostino, Officer Donakowski went outside and spoke with Mr. Agostino, while Officer Matyas conducted his interview with Mrs. Agostino. Mr. Agostino told Officer Donakowski that the only thing that happened was an argument, though he did admit to breaking down the bedroom door. Mr. Agostino stated that he had never physically abused his wife in seven years of marriage. Officer Matyas noted that Mrs. Agostino was visibly upset and shaken. He observed fresh bloody scratches and swelling around her right eye, as well as blood in her hair near the scratches. Officer Matyas also noted several broken panels in the master bedroom door. When Officer Matyas asked Mrs. Agostino what had happened, she told him that she and her husband had been in the living room. Mr. Agostino asked her for a $500 check to pay the mortgage, because he had spent $600 on a sprinkler system. She told him that she could not give him the money because she needed it for a car payment. Mr. Agostino became angry and verbally abusive. Mrs. Agostino became fearful and locked herself in the bedroom. Mr. Agostino began banging on the bedroom door. As Mrs. Agostino picked up the phone to call 911, Mr. Agostino broke through the door and entered the bedroom. He forced Mrs. Agostino's head down to the floor while gouging at her eyes with his fingers and thumbs. She agreed to give him the money and he let her up. Mrs. Agostino told Officer Matyas that there had been a physical confrontation on the previous day in which her husband attempted to strangle her. She believed her husband was bipolar, though he had not been medically diagnosed. She told Officer Matyas that she did not want to press charges because her husband could be fired from his job. Based on the physical evidence and witness statements, the officers arrested Mr. Agostino and charged him with Battery--Domestic Violence. Officer Donakowski took photographs of Mrs. Agostino's injuries, the broken door, and a clump of hair that Mrs. Agostino stated had been pulled from her head by Mr. Agostino. The photographs were admitted into evidence at this proceeding. The charges against Mr. Agostino were subsequently dismissed. The Lee County School District investigated allegations of misconduct against Mr. Agostino arising from his arrest. At his predetermination conference, Mr. Agostino denied that any physical confrontation took place between his wife and him. The school district concluded that there was no probable cause to impose discipline on Mr. Agostino. At the hearing in this matter, Mrs. Agostino testified that on the morning of May 16, 2003, it was, in fact, she, who attacked her husband. She testified that at the time, she was taking medication for petit mal seizures that made her very agitated, violent, and confused. She stated that the medication also caused her hair to fall out in clumps, accounting for the hair observed by the police officer. The medication named by Mrs. Agostino was Keflex. In fact, Keflex is a marketing name for cephalexin, a cephalosporin antibiotic unrelated to treatment of seizures. However, the symptoms described by Mrs. Agostino are consistent with common reactions to seizure medications. It is within reason that Mrs. Agostino, who is not a medical professional, simply confused Keflex with another medication she was taking for seizures. Mrs. Agostino testified that on the morning of May 16, 2003, she was attempting to confront Mr. Agostino about their finances, but he would not talk to her. Mrs. Agostino testified that his silence infuriated her, and she became violent. Mr. Agostino retreated into the bedroom. She broke through the door and attacked him, hitting him with the telephone, then throwing the telephone at him. Mrs. Agostino testified that she did not know how the 911 call was made. She theorized that the speed-dial may have been activated when she threw the phone at Mr. Agostino. She also had no idea how the scratches appeared around her eye, unless she hit her head on the bedroom door as she broke it down. Mrs. Agostino testified that she told the police officers that her husband attacked her because she was mad at him. At the hearing, Mr. Agostino testified that he and his wife were arguing about money. Mrs. Agostino became very agitated and started to become violent. Mr. Agostino retreated to the bedroom, closing and locking the door behind him. Mrs. Agostino "came through the door" and attacked Mr. Agostino, who put out his hands to fend her off. Mrs. Agostino started hitting him with the telephone. Mr. Agostino tried to get away, and she threw the phone at him. Mr. Agostino went into the living room. Mrs. Agostino followed and continued screaming at him. Mr. Agostino kept the couch between himself and his wife. At that point, the police knocked at the front door. Steven DeShazo, the principal of North Fort Myers High School, testified that he has worked with Mr. Agostino for eight years. Mr. DeShazo has had conversations with Mr. Agostino about scratches and abrasions on the latter's arms, presumably caused by Mrs. Agostino. Mr. DeShazo testified that he has had conversations with both Agostinos about their need for counseling, but that Mr. Agostino did not want to discuss his family problems. Mr. DeShazo discussed the May 16, 2003, incident with Mr. Agostino a few days after the events. Mr. Agostino told him that Mrs. Agostino had attacked him, and he had tried to fend her off. Mr. DeShazo had no personal knowledge of the events of May 16, 2003. The testimony of the Agostinos at the hearing completely contradicted the statements that Mrs. Agostino gave to the police on the morning of May 16, 2003, as well as Mr. Agostino’s admission to Officer Donakowski that he broke down the bedroom door. Only one version of these events can be true. It is found that the version of events related by Mrs. Agostino to the police officers was the truth. The police officers were at the Agostino house within four minutes of the 911 call. They observed that Mr. Agostino was pacing the living room floor and was out of breath. Both officers observed that Mrs. Agostino was very emotional, crying, scared, and upset. These observations lead to the finding that Mrs. Agostino was still suffering under the stress of the attack, and in her emotional state did not have time to contrive a false story. This finding is supported by the fact that Mrs. Agostino's statements to the police officers were consistent with all the other evidence: the 911 call, the broken door, the clump of hair, her own physical injuries, and the fact that she was in the bedroom when the police arrived. At the hearing, Mrs. Agostino attempted to make her new story comport with the physical evidence but was far from convincing. The clump of hair was plausibly explained as a reaction to medication, but she had no explanation at all for the scratches above her eye. Mr. Agostino's testimony hinted that he might have scratched her eye while trying to fend her off. Mrs. Agostino theorized that throwing the telephone might somehow have caused it to speed-dial 911. Even if the undersigned accepted the phone-throwing theory, there is no explanation for why the female voice on the 911 call was screaming, "Get the fuck off of me," if Mrs. Agostino was the aggressor and Mr. Agostino's only physical reaction was to fend her off. There is also no explanation for why Mrs. Agostino was in the bedroom when the police arrived. Mr. Agostino testified that she was in the living room when the police knocked on the front door, directly contradicting the testimony of both police officers. At the hearing, Mr. Agostino testified that he told the police and school officials that there was no physical confrontation in order to protect his wife, who is also an employee of the Lee County School District. He feared that she would lose her job if it became known that she attacked him. Given the evidence presented at the hearing, it is far more likely that Mrs. Agostino changed her story in order to protect her husband’s job. The evidence presented is sufficient to establish that Mr. Agostino committed an act of moral turpitude when he broke down the bedroom door, forced his wife's head down to the floor and gouged her eyes, releasing her only when she agreed to give him the money he wanted. This was an act of serious misconduct in flagrant disregard of society's condemnation of violence by men against women. The evidence presented is not sufficient to establish that Mr. Agostino attempted to strangle his wife on May 15, 2003. In this instance, there was no physical or other evidence to corroborate Mrs. Agostino’s hearsay statement to the police officers that her husband had attempted to strangle her. Although the evidence establishes that Mr. Agostino committed an act of moral turpitude, the only evidence offered regarding any notoriety arising from the May 16, 2003, incident was Mr. DeShazo's testimony that there was news coverage of the arrest. Mr. DeShazo stated that several students approached him expressing concern about Mr. Agostino and their hope that he would be allowed to remain at the school. Mr. DeShazo testified that no parents came to him expressing concern about the incident. There was no evidence to prove that Mr. Agostino's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Agostino's service in the community. There was insufficient evidence presented to establish that Mr. Agostino's performance as a teacher and an employee of the Lee County School District was diminished as a result of the May 16, 2003, incident and its aftermath. Mr. DeShazo testified that Mr. Agostino is the assistant principal for student affairs, which he described as the most high pressure, stressful job at the school. Mr. Agostino has never lost his temper at work, even in situations in which he has been hit and spat upon by unruly students. Mr. DeShazo testified that Mr. Agostino has been at work every day and has handled this uncomfortable situation with complete professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Section 1012.795(1)(c), Florida Statutes (2003). It is further RECOMMENDED that a final order be issued placing Respondent on a two-year period of probation, subject to such conditions as the Commission may specify, including the requirement that Mr. Agostino undergo a full psychological evaluation and receive any necessary counseling to ensure that he is fully capable of performing his assigned duties with no further incidents such as those of May 16, 2003. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of February, 2004. COPIES FURNISHED: Robert B. Burandt, Esquire Roosa, Sutton, Burandt, Adamski & Roland, LLP 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, 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 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 August, 2007.
The Issue Whether the Respondent's teaching certificate should be disciplined for alleged acts of misconduct as set forth in the Administrative Complaint, dated November 7, 1995, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rule 6B 1.006, Florida Administrative Code.
Findings Of Fact Respondent holds Florida Educators Certificate 614756, covering the areas of Early Childhood Education, Elementary Education, Specific Learning Disabilities, and Emotionally Handicapped. The certificate is valid through June 30, 2000. At all times relevant, the Respondent was employed as a Specific Learning Disabilities resource teacher at Merritt Island High School in the Brevard County School District. Beginning in 1992 and continuing through March, 1994, Respondent engaged in a series of sexual relationships with C.M., R.B., D.L., and J.C., four minor male students at Merritt Island High School. The sexual activity involved masturbation and oral sex which took place during and after school, at various locations on the school campus, including Respondent's classroom at Merritt Island High School. Sexual activity also took place in Respondent's vehicle while at the beach. In exchange for the sexual favors, Respondent gave the students money, clothing, food, and other items. When Respondent's relationships with these students became public knowledge, she requested a personal leave of absence from school beginning April 4, 1994 through June 6, 1994. During the 1994 1995 school year, Respondent was placed in a nonstudent contact position. On or about August 24, 1994, Respondent was arrested and charged on 40 counts of Sexual Battery on a Minor by a Person in Custodial Authority. Eventually, additional charges were added for a total of 101 counts in four separate cases. Respondent pled Not Guilty to all counts in the Circuit Court for Brevard County, Florida. Thereafter, all four cases were tried together before a jury. On or about August 26, 1995, following the jury trial in the circuit court, Respondent was found guilty on 64 of the 101 Counts in the four cases, as follows: In Case Number 94A: 23 of 37 counts of Sexual Activity with a Minor by a Person in Custodial Authority: In Case Number 94 A: 34 of 47 counts of Sexual Activity with a Minor by a Person in Custodial Authority; In Case Number 94A: 2 of 2 counts of Sexual Activity with a Minor by a Person in Custodial Authority: and In Case Number 65A: 4 of 10 counts of Sexual Activity with a Minor by a Person in Custodial Authority and 1 of 1 counts of Lewd and Lascivious Act upon a Minor. Following the convictions on the 64 counts by the jury, the Court revoked Respondent's bail and she was remanded to the custody of the Brevard County Sheriff pending sentencing. Following her conviction, Respondent was placed in a no pay status, as absent without leave, with the school district for the 1995-1996 school year. Respondent was subsequently terminated from her employment with the school district. On or about October 5, 1995, the Circuit Court adjudicated the Respondent guilty of the 64 felony counts and sentenced her to serve 10 years in custody, followed by 15 years of supervised probation. Following the first twelve months after her release from prison, Respondent is to pay the cost of her supervision. Special conditions of Respondent's probation include the following: Undergo psychiatric treatment/mental heath counseling for sex offenders and such other psychiatric treatment/mental health counseling as directed. Have no contact with the victims or their families. Have no contact with any male child under the age of 18 years without the child's parent or guardian being present; and Not engage in any employment or volunteer activities, paid or unpaid, which place her in a position of supervision or authority over children under the age of 18 years. Respondent is presently serving her sentence in the custody of the Florida Department of Corrections. Respondent is guilty of gross immorality and conduct involving moral turpitude. Respondent's misconduct seriously reduces her effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent did violate the provisions of Sections 231.28(1)(c), (e), (f), and (i), Florida Statutes, and Rules 6B1.006(3)(a), (e), (g), (h), and (4)(c) Florida Administrative Code. It is further RECOMMENDED that a Final Order be issued permanently revoking Respondent's teaching certificate for the above violations. DONE AND ENTERED this 18th day of March, 1997, in Tallahassee, Leon County, Florida. _ DANIEL M. KILBRIDE 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 18th day of March, 1997. COPIES FURNISHED: Carl J. Zahner,II, Esquire Office of the General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-1700 Lorene C. Powell, Esquire 118 North Monroe Street Tallahassee, Florida 32399-1700 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center, Room 224B 325 West Gaines Street Tallahassee, Florida 32399 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Florida Educator Certificate held by Respondent, Carl Moore, should be disciplined for conduct alleged in the Administrative Complaint filed in this case by Petitioner, Jim Horne, in his capacity as Commissioner of Education.
Findings Of Fact At all times material to this proceeding, Respondent held Florida Educator Certificate No. 822030, covering the area of music. This certificate is valid through June 30, 2003. Respondent was employed at Neptune Middle School, Osceola County, Florida. On July 20, 2004, A.H., who was 17 years old at the time of the alleged incident, was in a hot tub at the Marriott Hotel, in Orlando, Florida. While she sat in the hot tub, she was approached by a young man in a white shirt and khaki trousers who stated "it would be nicer if the jets to the hot tub were on," or words to that effect. A.H. agreed, and the young man walked over to the control panel and attempted to activate the jets. The young man appeared to be unable to activate the jets and walked away from the area. A.H. then got out of the hot tub and attempted to activate the jets herself. As she attempted to activate the jets, the young man approached A.H. and grabbed her right breast. After removing his hand from A.H.'s breast, the young man stated "those are nice." A.H. retreated from the young man, shocked by his actions, and asked why he had touched her. She then began calling for help; the young man walked away. The lighting and proximity of the young man to her allowed A.H. to get a good look at her assailant. A.H. then called her father, who was at the hotel with her, on her cell phone. Her father joined her in the area contiguous to the pool area and called for assistance. A.H. and her father returned to the pool area. A.H. observed the attacker on the other side of the pool and alerted her father who shouted at the attacker. The attacker immediately fled the pool area. Hotel security was, however, able to maintain observation of the attacker. As a result, hotel security officers were able to block the attacker's path of exit from a parking lot resulting in the attacker's automobile crashing into a tree. After the attacker was taken into custody by the hotel security officers, he was identified as Carl Moore, the Respondent herein. Orange County Sheriff's Department deputies arrived shortly thereafter and took charge. A.H. was brought to the parking lot where she observed Respondent and identified him as her assailant. After further investigating the incident, Deputy Sheriff Don Doyle placed Respondent under arrest, charged him with battery, and transported him to jail. Respondent acknowledged that he did not report the arrest to the Osceola County School Board within 48 hours as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding respondent guilty of violating Subsections 1012.795(1)(c) and (i), Florida Statutes (2004), and Florida Administrative Code Rule 6B-1.006(5)(m) and revoking Respondent's Florida Educator Certificate No. 822030. DONE AND ENTERED this 15th day of December, 2004, 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 15th day of December, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Edward T. Bauer, Esquire Brooks, Leboeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Carl Moore 910 South Park Court Kissimmee, Florida 34741 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether just cause exists to impose sanctions against Respondent, Winston Northern (“Northern” or the “Teacher”), up to and including revocation of his Educator’s Certificate.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to Florida Educator Certificates, as provided in sections 1012.795 and 1012.796(6), Florida Statutes (2016). The Commissioner of Education is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida Educator Certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016) At all times relevant hereto, Northern held a Florida Educator Certificate and was employed as a teacher in the Duval County School System, teaching at A. Philip Randolph Academy of Technology, a charter school within the Duval County school system (and referred to herein as the “School”). On October 30, 2013, L.E. was a ninth-grade male student in the Teacher’s fourth period class, Introduction to Information Technology. L.E., who had a history of misbehaving in class, was one of 25 students in class on that day. The facts of this case read like A Tale of Two Cities; “It was the best of times, it was the worst of times.” Although the duration of the incident in question was very short, and the location where it occurred was limited in size, the disparity in the testimony of eye witnesses could not be greater. For some, there was clearly an egregious event precipitated by the Teacher’s actions. For others, there was only a minor disruption of class with little significance. Few of the witnesses seemed to have a clear memory of the events that transpired that day, as evidenced by the contradictory and imprecise testimony evoked at final hearing. The Commissioner’s View Mrs. Byrd (formerly Ms. King) was the School’s “computer technology coordinator.” She would often come into Mr. Northern’s classroom because most of the School’s computer- related supplies were kept in a closet in that classroom. Mrs. Byrd came into Mr. Northern’s room on October 30, 2013, to get some IT supplies out of the closet. As she exited the classroom, Mrs. Byrd saw a woman walking quickly towards the classroom door; the woman appeared to be very agitated. Mrs. Byrd asked the woman (later identified as T.E., L.E.’s mother, and also referred to herein as the “Mom”) if she needed assistance. Mrs. Byrd noticed that the woman was not wearing a Visitor’s badge, as required by school rules. The woman said she did not need any help and that Mr. Northern had called her to come and deal with her son’s behavior issues. At that point, Mr. Northern opened the door and ushered T.E. into the classroom, indicating to Mrs. Byrd that it was “okay.” Mrs. Byrd followed them back into the classroom. T.E. immediately made a beeline to where her son, L.E., was sitting. Mrs. Byrd remembered T.E. physically attacking her son as she yelled profanities at him. The beating, with fists and open hands to L.E.’s face, lasted “a long time.” Mrs. Byrd initially estimated it to be about a minute and a half in length, but later agreed that it was probably about 15 seconds in duration. During the time that L.E. was being physically attacked by his mother, Mr. Northern did not intervene. Mrs. Byrd was in shock at what she was witnessing. At some point, Mrs. Byrd recovered from her shock and began to shout Mr. Northern’s name over and over to get his attention. Mr. Northern then directed the Mom and L.E. out into the open area outside the classroom. A student told Mrs. Byrd she “needed to do something” after L.E., his mom and Mr. Northern left the room. She obtained L.E.’s name from a student so that she could report the incident. Once outside the classroom, T.E. continued to berate both L.E. and Mr. Northern. At that point, Mrs. Byrd (who had walked out of the classroom sometime after the others) walked towards the elevator which was located just across from the classroom. As she neared the elevator, she met Mr. Lewis, the principal at the school. She indicated to Principal Lewis that she needed to talk to him about something important, i.e., the incident she witnessed in Mr. Northern’s classroom. However, Principal Lewis heard the Mom cursing loudly at T.E. and instead of talking to Mrs. Byrd, he went to speak to the Mom. Mrs. Byrd entered the stairwell next to the elevator and went downstairs. Principal Lewis explained to the Mom that the language she was using was not allowed on campus and that she needed to calm down. She did so. T.E. then took her son downstairs and presumably signed him out of school for the remainder of the day. Mr. Northern did not indicate to Principal Lewis that there had been a problem of any kind in the classroom. Principal Lewis’ testimony overall was not persuasive. He seemed very unclear as to how the events unfolded and seemed to contradict other, more believable witness testimony. Mrs. Byrd was upset by the incident and immediately called the abuse hotline at the Department of Children and Families (“DCF”) to report the incident. DCF advised Mrs. Byrd to notify administration at the School about the incident. Mrs. Byrd contacted the assistant principal, Mrs. Peeples, but not until the next day. Mrs. Peeples asked Mrs. Byrd to provide a written statement about the incident and Mrs. Byrd prepared the statement. At about 4:15 p.m. on the day of the incident, Mrs. Peeples allegedly received a telephone call from the parent of one of the other students in Mr. Northern’s class. The student had purportedly told his/her parent a fellow student, L.E., had been severely beaten by his mother in the presence of the entire classroom. Based on that call, Mrs. Peeples contacted Principal Lewis to tell him what she had heard from the parent. Principal Lewis remembered that he, not Mrs. Peeples, received the parent’s phone call on that day. He also remembered talking with Mrs. Peeples about the incident and that she recounted her conversation with Mrs. Byrd. Mrs. Byrd, however, said she did not talk to Mrs. Peeples about the incident until the following day. Therefore, who talked to whom and when the conversations occurred are not completely clear from the testimony provided. Principal Lewis contacted Mr. Northern and told him they needed to talk, so Mr. Northern later stopped by Mr. Lewis’ office. A short conversation was held, but Mr. Northern did not say that the Mom had physically attacked her son in the classroom. Mr. Northern did not remember being summoned to Principal Lewis’ office, but remembered talking briefly to him in the breezeway on the first floor of the School. The School gathered statements from six of the 25 children in Mr. Northern’s classroom that day. Three of the statements were not signed and did not clearly indicate who had written them. Mrs. Peeples, who decided which students to ask for statements and was present as each child wrote his or her statement, could not--on the day of final hearing--identify the authors of the unsigned statements. Mrs. Peeples’s testimony was credible, but not substantively helpful. Some of the students’ hearsay statements seem to confirm what Mrs. Byrd reported; some do not. From the affirming statements came these remarks: “His mom came up there and kept punching [L.E.] in the face.” (K.B.) “His mom had just started beating on him.” (W.W.) “[His] mother just started hitting him in the face.” (J.W.) “A mom . . . came in and was very angry, very verbal about her anger and started hitting her son and yelling.” (Unsigned) “[L.E.’s] mom started hitting him.” (Unsigned) None of the hearsay statements were particularly credible as they are all unverified and without information as to the author. The Teacher’s View On October 30, 2016, L.E. was engaged in playing a very violent video game on a classroom computer in Mr. Northern’s classroom. L.E. had accessed the game by way of a “modified” thumb drive which made his actions undetectable by school administration, which may have been monitoring the computer. Mr. Northern told L.E. to put the game away, because it was prohibited by school policy. Further, a school assembly had been held recently wherein the consequences for playing such video games were announced, i.e., five days suspension from school and 45 days restriction from use of school computers--at least that was Mr. Northern’s description of the events at final hearing. In his deposition (taken on July 18, 2016), Mr. Northern said the issue with L.E. was that L.E. was “playing video games” instead of logging on to the appropriate website. He made no mention of the nature of the video games or that they were violent or prohibited by school policy, only that L.E. was told three times to stop playing videos and log on to the website as directed. After the third warning, Mr. Northern decided to call in reinforcements, to wit: L.E.’s mom. It was customary for Mr. Northern to call L.E.’s mom or Dean Lapkin, a school administrator, when L.E. would act out in class or fail to stay focused on his work. Mr. Northern said L.E. was a bright student, very versed in computer skills. He had a lot of potential, but was very often off-track and off-task. When L.E. refused to comply with instructions, Mr. Northern would call T.E. and have her talk with her son. That was usually enough to get L.E. back on track. Principal Lewis confirmed that calling a student’s parent was an acceptable method for dealing with recalcitrant students. On the day in question, Mr. Northern finally pulled L.E. off the computer (whether for playing video games despite being warned three times or for playing forbidden violent video games) and telephoned L.E.’s mother. Mr. Northern said at final hearing that he had first contacted Dean Lapkin to see if L.E. might be released from the prescribed discipline for watching violent video games on campus. Dean Lapkin said the discipline was to be imposed, that Mr. Northern should write a referral and he, Lapkin, would make the call to L.E.’s mom. But somehow Mr. Northern determined that the dean was too busy to call T.E., so Mr. Northern called the Mom himself. Mr. Northern said he received the Mom’s telephone number from Dean Lapkin that very day, but that statement flies in the face of his prior testimony that he had called the Mom several times in the past about L.E.’s behavior. (This sort of discrepant testimony severely clouds the facts in this case.) As Mr. Northern was talking to the Mom, she put him on hold to take another call, reputedly from Dean Lapkin. When she returned to the phone call with Mr. Northern, the Mom said she was already at the School. In his deposition, Mr. Northern said that he called T.E. immediately, i.e., there was no mention of calling the dean first, and that she arrived at the School as they talked. Mr. Northern anticipated receiving a call from downstairs for him to send L.E. down to the Guidance Office to check out, or, possibly, that the Mom would be escorted to his classroom to get L.E. Instead, a few minutes after Mr. Northern completed his call to T.E., she appeared in his classroom. Mrs. Byrd had just left the room, so Mr. Northern assumed she had let T.E. into the room (as the door is generally locked). However she gained entrance, Mr. Northern heard L.E. say to someone, “Bitch, what you gonna do now?” and turned around to see T.E. racing toward L.E., cursing loudly. Mr. Northern testified that he “tried to rush over” to intercept the Mom before she got to L.E. He stated that he was able to get between the two and fend off the Mom’s attempts to hit her son. As far as he knew, the Mom never landed any blows on L.E. Mr. Northern did not remember anyone in the classroom saying anything to him during the confrontation. After some unspecified amount of time, Mr. Northern escorted T.E. and L.E. outside the classroom into the hallway area. The Mom continued haranguing her son in that area until Principal Lewis intervened. One student’s statement seems to confirm Mr. Northern’s comments: The student wrote, “Mr. Northern call [L.E.] to his desk then his mom came and took him out of the classroom.” At final hearing, Ms. Williams, a former student who was present on the day in question, remembered the Mom slapping at L.E. but could not remember if the Mom ever made contact. Hearsay evidence at final hearing presented by Mrs. Byrd, uncorroborated but not objected to, indicates that during the DCF investigation L.E. had reported that his mom never hit him, but neither L.E. nor T.E. testified at final hearing to verify what actually happened. According to Mr. Northern and at least two of the students, Mrs. Byrd was not in the classroom during the confrontation between L.E. and his Mom. Mr. Northern did speak to Principal Lewis at some point after the incident. According to Mr. Northern, they met in the breezeway on the first floor for a few moments. Principal Lewis maintained that he called Mr. Northern to his office to talk about the incident later on the day it happened. Mr. Northern’s testimony was not persuasive as to the specifics of his meeting with Principal Lewis. Other Factors in the Dispute The Mom’s physical size was discussed by three witnesses. Mrs. Byrd described her as being “bigger than me.” (Mrs. Byrd is approximately five feet, two inches tall and stout in stature.) Ms. Williams said the Mom was about five feet, four inches tall and “not that big.” Mr. Northern said she was about five feet, one inch tall and weighed about 102 pounds. L.E. was a ninth-grade student and was sort of slight in stature. Mrs. Byrd said the Mom did not have a Visitor’s badge on her person. She could not remember what the Mom was wearing on that day, but did not see a badge. Mr. Northern said the Mom was wearing a halter top and tight jeans that day, totally inappropriate clothing under the student dress code (as he initially thought T.E. was a student). She did have a Visitor’s badge but, with no place to put it on her clothes, she had it in her purse. Neither party presented the Visitor’s log for that day to substantiate whether T.E. had registered or not, so we shall never know. It is interesting that Principal Lewis never asked T.E. about a Visitor’s badge. There were allegedly three investigations done concerning the alleged incident: One by the school; one by DCF; and one by law enforcement. None of the investigative reports (or their ultimate findings) was introduced into evidence in order to substantiate either party’s position. It was not mentioned whether photographs were taken of L.E. to ascertain bruising or other injuries from the alleged beating. So, again, we shall never know. After the investigations were concluded, Principal Lewis did not “trespass” the Mom from coming on campus in the future, even though he had authority to do so if warranted.1/ Neither the Mom nor L.E. was called to testify or bring some clarity to the matter at hand. Presumably they would have confirmed the position of one side or another in this matter, but again we shall never know. Nor was Dean Lapkin called to verify his involvement in the situation. Mr. Northern served as a teachers’ union representative at the School. He has brought complaints to Principal Lewis on numerous occasions as part of his duties in that role. Mr. Northern has also brought direct complaints to Principal Lewis regarding computer equipment issues in his own classroom. The two men have a “history” outside the present dispute. In fact, just about two weeks prior to the alleged incident, Mrs. Byrd wrongfully removed ten computers from Mr. Northern’s classroom, forcing him to have Principal Lewis intervene to have the equipment returned. The Amended Administrative Complaint in this matter contains four counts: Count I is a general count alleging that Mr. Northern violated the Principles of Professional Conduct for the Education Profession; Count II alleges Mr. Northern’s failure to protect a student from conditions harmful to learning or to the student’s mental health and/or physical health and safety; Count III alleges intentional distortion of facts concerning an event; and Count IV alleges failure to maintain honesty. What the unrefuted evidence at final hearing proved is this: Mr. Northern was teaching his class on October 30, 2013. L.E. was a student in that class. L.E.’s mother came to the classroom cursing loudly and took L.E. away. Mrs. Byrd had been in the classroom in close proximity to L.E. as he was being removed from the classroom by his mom and/or Mr. Northern. Mrs. Byrd reported an incident to DCF and to the School administration. Mr. Northern discussed the matter with Principal Lewis. “Tis a far harder decision I make in this case than I have ever made . . .,” at least as to what actually transpired that fateful day in Mr. Northern’s classroom. The conflicting and unclear stories delivered by the key players in this incident (minus the two primary protagonists), does little to explain what actually happened on that day. Based on the totality of the conflicting testimony, it is likely that T.E. came into the classroom and accosted her son. The finer details of what she did, however, seem to be forever lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint against Respondent, Winston Northern. DONE AND ENTERED this 15th day of November, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 15th day of November, 2016.
