The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
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 Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 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 10th day of February, 2010.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
The Issue The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Background Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's: desire and ability to work with problem students; expertise in behavior management techniques; desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior; ability and expertise in diagnosing difficulties opposed to motivational achievement; ability to utilize school and community resources to benefit students; and ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students. Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992. Reduced Effectiveness And Rule Violations In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary. DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425 Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance 4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance 18. Accepted in substance 3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance 17.-21. Rejected as not supported by the weight of evidence Accepted in substance Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance 26.-27. Rejected as not alleged in the administrative complaint Accepted in substance Rejected as not supported by the weight of evidence 30.-32. Rejected as not alleged in the administrative complaint Rejected as not supported by the weight of evidence Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance 37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance 47.-50. Accepted in substance 51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance Respondent's Proposed Findings of Fact Accepted in substance Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance 14. Accepted in part and rejected in part as not supported by the weight of evidence 15.-16. Accepted in substance Accepted in part and rejected in part as not supported by the weight of evidence Accepted in substance Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44 Accepted in substance Rejected as contrary to the weight of evidence 22.-25. Accepted in substance 26. Accepted in part and rejected in part as contrary to the weight of evidence 27.-33. Accepted in substance 34. Accepted in part and rejected in part as contrary to the weight of evidence 35.-38. Accepted in substance 39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance COPIES FURNISHED: Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300 Ft. Lauderdale, Florida 33301 Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Ft. Lauderdale, Florida 33312
Findings Of Fact At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Reject as to two week time period. See HO #7. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #11. Accepted. See HO #15. Accepted. See HO #16. Accepted. See HO #17. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Rejected. Witness incompetent to render legal conclusion. Rejected. Improper summary, Accepted. See HO #21. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #8-#10, #11, #13 and #15. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games. See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as contrary to fact. See HO #6 and #7. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law. Rejected. Improper summary. See HO #19 and Conclusions of Law. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544. COPIES FURNISHED: Wilbur C. Smith, III, Esquire Post Office Drawer 8 Fort Myers, Florida 33902-0008 Craig R. Wilson, Esquire 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Lloyd Wright, was a teacher employed by the St. Lucie County School District at Westwood High School. Tenecia Poitier was, during the 1986-1987 school year, a student of Respondent in his world history class. In early February, 1987, she filed a complaint against him with school officials because, she says, she got tired of his repeated comments to her of a sexual nature. Reportedly, on one occasion, Respondent indicated to her that he was going to "... fuck her brains out." This comment was overheard by another student in the class, Tony Lee, who believed Respondent was only joking with her. No follow-up action was taken by Respondent on this threat. Ms. Poitier also alleges that on one occasion, while in the school library, Respondent came over and sat down next to her and touched her on the leg. This was observed by Felicia Newton who was sitting across the library table from Ms. Poitier and who, because she was sitting out somewhat from the table, could see Respondent touch her on the outside of the leg. The hug Respondent also gave Ms. Poitier was more of a friendly hug than one with sexual overtones as was the touch. When Ms. Poitier told him to stop, he did and immediately thereafter left the table. Respondent has never hugged or touched Ms. Newton and she has never heard any other girl say Respondent has hugged or touched them except Ms. Poitier, who had told her prior to the library incident that she didn't like the way Respondent was always touching her. On one other occasion, according to Ms. Poitier, when she got chocolate on her pants in class, she asked to go to the rest room to wash it off. In response, she claims, Respondent grabbed her "butt" and commented, "Girl, I want that thing" or words to that effect. Ms. Poitier claims that when he did that, she "cussed him out." Ms. Poitier filed her complaint with school officials after reporting the incident to her father. It would appear, however, that the complaint was motivated by fear of punishment herself, as Respondent contends that on the day prior to the complaint, he observed her doing her math homework in his history class and confiscated and destroyed it. When he did this, she became irate and indicated she was going to tell her father. With that, Respondent summoned a representative of the administration and had her ejected from class. He also wrote a letter to her counselor complaining that she refused to follow class rules and was disruptive and requested she be taken out of his class because she was not doing the required work. There is ample independent testimony from others, including Ms. Poitier herself; that she curses frequently in class and her reputation for telling the truth is not good. In addition, Respondent had notified Ms. Poitier that she had been denied membership in the Millionaire's Club which he sponsored, because she would not follow club rules. She was also dismissed from membership in the Pep Club because of her forgery of Respondent's name to hall passes. Neither these latter actions nor the allegations of her removal from class, testified to only by Respondent, were corroborated by independent evidence. Ms. Poitier denies being put out of the Pep Club and claims she quit the Millionaire's club to join another one. Ms. Poitier indicates, on the other hand, that she was written up because she had threatened to tell her father what Respondent had said and done to her. Her veracity being successfully attacked, however, it is found that Respondent's story is more believable. Respondent, Ms. Poitier claims, also hugged other girls and touched at least one, Ms. McGee, on the leg when she came up to his desk on one occasion. In fact, she claims, he will touch any girl who will put up with it. McGee, on the other hand, denied that Respondent touched her on the leg as alleged by Poitier, but contends he did hug her around the shoulder from the side on one occasion. More significant, however, is the fact, admitted by the Respondent, that early one morning, while driving his mother to the grocery store, he saw Ms. McGee walking with two boys, one of whom was her brother. Respondent drove up beside them, waved and blew his horn to get their attention, and then told her he was going to take her to the woods. He claims he did not mean the comment to be taken literally but more as a joke like the kids would make. He did not believe that McGee took the comment seriously but, in fact she did, and the comment was totally inappropriate for a teacher to make to a female student under any circumstances. Other students, such as Eugenia Lunsford, report improper comments by Respondent to them or others. Ms. Lunsford claims she heard him tell girls, in the classroom, that he liked them and ask them if he could have a chance with them. She contends she heard him state that he'd like to "fuck" Cochina Hall and Tenecia Poitier. Ms. McGee remembers Respondent stating he would like to do something sexual to her, and on one occasions, when she asked him to stop peeling a grapefruit in class, he asked her if he could touch her. He never did, however, except to give her a hug. She considers the term "touch" to mean a sexually oriented touching of a girl's private parts. She also recalls an incident where she saw Respondent pull Ms. Foster's shirt away from her body by the pocket and look down the front. She thinks he was looking at her breasts. Ms. Foster, however, denies this incident happened. In light of this, Ms. McGee's testimony is suspect and, like Ms. Poitier, her credibility is slight. There is no evidence that by any of the hugs that he gave the various girls he in any way committed any inappropriate touching of the breasts or any place else or that though unwelcome, they were sexual in nature. The report by Ms. Lunsford of Respondent's touching Ms. Foster's "butt" was denied by Ms. Foster. In substance, Ms. Lunsford's testimony is not credible and Ms. Foster considers Respondent a good teacher. She would not fear going back into his class. Tony Lee, who heard Respondent make the inappropriate comment to Ms. Poitier, also heard him say to a female student, "Pull your pants down and let me touch you." At the time, Respondent and a group of female students were laughing and joking together and he does not feel that Respondent's comment was seriously made. In fact, Respondent frequently joked with his students, both male and female, making suggestive comments, and everyone knew they were jokes. Lee knows of no incident where Respondent ever attempted to follow up on these comments. He denies ever hearing that Respondent attempted to touch Ms. McGee. To the contrary, she allegedly told Lee she had attempted to touch Respondent and Lee told her she was crazy to do that. Only one parent had direct knowledge of Respondent's relationship with his students. At one parent/teacher night, Mrs. Johnson was attending Respondent's presentation to a group of students and parents when he reportedly stopped in mid- sentence and ogled one or more female students who came into the room. Mrs. Johnson felt his stare, which, she claimed, constituted a visual undressing of the girls, was inappropriate and embarrassing. Her comments were endorsed by her daughter Josephine, who would not want to go back into Respondent's class. In this incidents however, Respondent neither said anything to or about these girls nor did he attempt to touch them. Petitioner presented testimony to establish that at one time, Respondent humiliated a male student in his class by implying he was a homosexual. Both the student and his mother were permitted to testify to this incident without objection by Respondent. This is, however, irrelevant to the issues framed by the Notice of Charges and in any case, the student admits that he and another student were smirking at allegedly inaccurate statements made by Respondent during his lecture, misconduct and out-of-line behavior in and of itself. Assuming, arguendo, that Respondent's reaction to the student was inappropriate, it has no relevance to the conduct complained of in the Notice of Charges. Other present and former students of Respondent indicated that he had a good rapport with his students and is a good teacher. None of these individuals including, Ms. Shaw, Ms. Donovan, Ms. Fuller, Ms. Frazier, and Ms. Diaz have ever seen him be improper or sexual in orientation with students notwithstanding numerous observations. He is not known by these people to flirt with or improperly touch students or to make suggestive comments to them though he would hug from time to time. The extent of his familiarity would be comments like, "Hey, baby. How ya doin'?," or words to that effect, comments readily admitted by Respondent. According to Ms. Frazier, a student in Respondent's class with Ms. Poitier, some students would speak improperly to Respondent by cussing at him. Usually, he would warn them but if they got out of hands he would write them up. Respondent is described by some, and by himself, as a friendly, outgoing, caring person who tries to get his students to achieve their potential. He is a tough taskmaster who expects his students to do their best. By his own admission, he tries to relate to his students by speaking their language and using their phrases. He tries to get his students to relate to him by relating to them and in 9 1/2 years as a teacher he has never before been told this was improper. He admits to hugging his students from the side and to touching them on the arm or head in encouragement while teaching. He rides up and down the aisles in his classroom on a rolling chair so he can sit next to students who are having trouble to help them. He uses flattery, even personal comments such as "You are beautiful" in an effort to motivate his students and denies that any of his comments or touchings were salacious or sexually oriented. From an evaluation of the evidence, it becomes clear that Respondent did not touch or handle his female students in a lewd, lascivious, or indecent manner. It is equally clear, however, that on several occasions he did make lewd, lascivious, or indecent comments to female students which could be construed as advances though it is doubtful he would have followed through on them. These comments, however, in the expert opinion of Ms. Bretherick, an experienced teacher, are never appropriate for a teacher to make to a student. A teacher who made such comments would be ineffective as a teacher. Exposure to such a teacher adversely effects the students' capacity to learn the subject matter and clouds or distorts the concept of the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that the Respondent, Lloyd Wright, be discharged from employment with the St. Lucie School District because of misconduct in office. RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1366 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Petitioner, by letter, specifically declined to submit proposed findings of fact. By Respondent Accepted and incorporated Finding of Fact. Irrelevant. Accepted and incorporated Finding of Fact. Accepted and incorporated Finding of Fact. Accepted as to the ultimate fact that the comment was made. Motivation is irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. First sentence is. Accepted and incorporated in the Finding of Fact. Second Sentence is irrelevant to the issues. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted. Accepted. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. COPIES FURNISHED: George R. Hill, Superintendent School Board of St. Lucie County 2909 Delaware Avenue Fort Pierce, Florida 33450 Jack Gale, Esquire The Boston House 239 South Indian River Drive Fort Pierce, Florida 33450 Lorene C. Powell, Esquire Asst. Gen. Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Daniel B. Harrell, Esquire First Citizens Federal Building 1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1988 LLOYD WRIGHT, Appellant, DOAH CASE NO: 87-1366 CASE NO. 87-2723 v. SCHOOL BOARD OF ST. LUCIE COUNTY, FLORIDA, Appellee. / Decision filed December 28, 1988 Appeal from the School Board of St. Lucie County. Lloyd Wright, Fort Pierce, pro se appellant. Daniel B. Harrell of Gonano, Harrell & Sherrard, Fort Pierce, for appellee. PER CURIAM. AFFIRMED. HERSEY, C.J., DOWNEY and ANSTEAD, JJ., concur. MANDATE from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida. WITNESS the Honorable George W. Hersey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day DATE: January 13, 1989 CASE NO.: 87-2723 COUNTY OF ORIGIN: School Board of St. Lucie Co. T.C. CASE NO.: 87-1366 STYLE: Wright v. School Board of St. Lucie Clyde Heath Clerk of the District Court of Appeal of the State of Florida, Fourth District ORIGINAL TO: School Board of St. Lucie county cc: Lloyd Wright, pro se Daniel B. Harrell, Esquire
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
