The Issue The issue to be determined in this case is whether Respondent violated section 1012.795(1)(f), (g), and (j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1., 5., and 8., and, 6A- 10.081(2)(b)1., and 3., as alleged in the Amended Administrative Complaint. If it is found that Respondent has committed any of the statute or rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted, and the record as a whole, the following facts are found: Respondent held Florida Educator's Certificate Number 1294936, covering the areas of English, English for Speakers of Other Languages (ESOL), and Reading, which was valid through June 30, 2020. At all times material to the allegations in the Amended Administrative Complaint, Respondent was employed as a Reading Teacher at Don Estridge High Tech Middle School ("Don Estridge") in the Palm Beach County School District. C.V.'s Relevant Background During the 2017-2018 school year, C.V. was an eighth-grade student at Don Estridge. Respondent was his intensive reading teacher. Intensive reading is a remedial course for students who are reading below grade level. Prior to working with Respondent, C.V.'s grades were below average. He received D's and F's in school. In 2016, C.V.'s mother, Renee Horn, married C.V.'s stepfather, Charles Horn. Prior to that marriage, C.V. was an only child living alone with his mother from the time he was two years old. C.V.'s stepfather also had children from a previous relationship. At the time C.V. met Respondent, his parents observed that he was having a difficult time adjusting to their newly- blended family. C.V.'s parents allowed him to spend time with his biological father. However, in their parental judgment, they believed that it was in C.V.'s best interest to limit visitation with his biological father. C.V.'s parents observed that C.V. displayed signs of non-characteristic fragility and volatility while he was under the instruction of Respondent, which concerned them. C.V.'s parents believed that the demonstrated emotional changes in C.V. were related to his friendship with Respondent and his resistance to the parents' desire to draw more boundaries with respect to that friendship. C.V. did not testify. Therefore, the source, or sources, of the behavioral issues observed by his parents and other adults around him were not conclusively established. Respondent's Relevant Background Respondent viewed herself as a teacher who was relatable to her students. She was an enthusiastic and energetic educator who enjoyed taking the time to help students whom she described as having previously slipped through the cracks. Respondent regularly provided extra help to students who requested it. Her door was open to any of her students who desired additional assistance with their school work. She regularly provided academic help to students during her lunch break. Tutoring C.V. first began receiving extra help with his school work from Respondent during his lunch period. In addition to C.V., Respondent regularly had between five and 15 other students in her classroom during the seventh-grade lunch period. This was also the time allotted to Respondent for her own lunch break. There was also a group varying between five and ten students whom she allowed to come to her classroom to work while she was teaching another class. Additionally, C.V. came to Respondent for help with his work in the mornings before school started. After C.V. began spending extra time working with Respondent, his grades improved. C.V.'s parents were aware of the correlation between the help from Respondent and the improvement in C.V.'s academic performance. In December of 2017, C.V.'s mother contacted Respondent and asked her to tutor C.V. outside of school on a private basis in exchange for payment. Respondent communicated with C.V.'s mother through email and text messages. Respondent authorized C.V.'s mother to give Respondent's cell phone number to C.V. so that he could communicate with her directly for educational purposes while the mother was at work. There was no evidence of the content of any text messages between Respondent and C.V. C.V. rode the school bus as his mode of transportation to return home after school. He was unable to stay after school for tutoring and still take the bus to get home. Although it was common for teachers to tutor students at a public library located near Don Estridge, Respondent found that when doing so, she often had to wait with students after tutoring sessions at the library for parents to arrive to provide transportation. This sometimes interfered with Respondent's ability to pick up her own children from preschool on time. For that reason, Respondent tutored C.V. after school at his home. She ensured that others were present at the home during tutoring sessions. Respondent also continued helping C.V. at school outside of his scheduled time in her class on an unpaid basis. With the consent of C.V.'s mother, Respondent transported C.V. from the school to his home either after helping him at school or when she was going to his home to tutor him. There was one occasion when Respondent drove C.V. to school for which it was unclear whether the parents gave her permission to do so. Believing that C.V. had developed an unhealthy attachment to Respondent, C.V.'s parents desired to limit his interaction with her. However, they did not terminate the tutoring sessions. Additionally, C.V.'s mother initiated contact between Respondent and C.V. on matters unrelated to academics amid the parents' efforts to create boundaries in the relationship. C.V.'s Time Spent in Respondent's Classroom In order to come to her classroom during their designated lunch periods, students were required to have a pass signed by Respondent. Those students who came to Respondent's classroom during lunch regularly reused the same pass to eliminate the need for her to create a new pass each time. C.V., along with other students, had such a pass issued by Respondent. Several witnesses testified that C.V. had a sticker on the back of his student identification card, which they characterized as a permanent pass placed there by Respondent, enabling C.V. to visit her classroom at any time. However, the provenance and meaning of the sticker were never conclusively established. On several occasions, C.V. left his elective music class to do work from other classes in Respondent's classroom. He did so with the coordinated permission of Respondent and the music teacher. Respondent believed that it was reasonable for C.V. to do so because her classroom provided a quieter environment for his studies and he was ahead in the music class because of his existing background in piano. When C.V.'s parents learned how much time C.V. was spending in Respondent's classroom during the school day, they thought that it was excessive. Church Attendance and Sharing Religious Beliefs Respondent served as an unpaid worship leader and co-runner of the children's ministry at a church where her father was the pastor. Neither she, nor any other person, served in a role designated to recruit members to the church. Respondent did not receive any incentive from the church to bring in new members. Respondent played music of various genres in her classroom. Sometimes she played Christian music. Respondent wore a cross necklace to school. When asked, she was open with students about the general fact that she was a Christian and that she attended church. Witnesses observed flyers with information about Respondent's father's church on her desk. It was not established that any students received, or even saw, the flyers. Some of Respondent's students have attended her father's church. When a student expressed interest in the church, Respondent did not give the student information about the church without express permission from a parent. With the permission of his parents, C.V. attended Respondent's father's church on several occasions. His parents attended the church with him on one occasion. Also, with the permission of his parents, C.V. was transported to and from church by Respondent or her husband and spent time with Respondent's family at her home after church. At some point, C.V. told some of his classmates that he attended Respondent's church. The nature of C.V.'s comments to his classmates about attending church with Respondent remains unclear. The evidence did not establish that Respondent directed him to do so. Admittedly out of frustration, Respondent posted a Psalm on the door outside of her classroom before leaving Don Estridge on her last day. She had contemplated handing the Psalm to Principal Capitano, but chose to place it on the door instead. A teacher observed the Psalm on the door, and an assistant principal removed it. Overnight Visits On one occasion, C.V. spent the night at Respondent's home with her family while his mother was out of town on a business trip. Having the impression that C.V. was unhappy at the prospect of going on the trip, Respondent and C.V.'s mother arranged for C.V. to stay with Respondent and her family for the weekend. C.V. spent the night at Respondent's home on a second occasion, which was also coordinated between Respondent and C.V.'s mother. C.V. expressed that he wanted to live with Respondent and that he knew more about her than her husband. Exchanging Gifts C.V.'s mother gave Respondent a number of gifts during the time when she was C.V.'s teacher. As a Christmas gift, C.V.'s mother gave Respondent a $100 gift card and two lipsticks. Later, she gave Respondent dresses for her daughters. Finally, for Valentine's Day, she gave Respondent a stuffed animal and a thermal water bottle. Respondent considered the series of gifts to be very generous. C.V.'s birthday was in February. Respondent wanted to reciprocate the generosity of C.V.'s mother by buying C.V. clothes for his birthday. Respondent sought permission from C.V.'s mother to purchase him clothing, which his mother declined. Believing that C.V.'s mother declined the gifts out of social politeness, Respondent ultimately bought him clothing for his birthday. Virginity Conversation One day during class, some of Respondent's students were discussing the topic of virginity among themselves. Respondent was not a party to the conversation until C.V. asked her at what age she thought kids should lose their virginity. Respondent believed that this was an age-appropriate topic for her 12- and 13-year old students to be curious about, but she declined to answer the question. She then told C.V. that it was not an appropriate question for her and that he should ask his mother instead. Although numerous witnesses testified to what they thought Respondent said to her students about virginity, Respondent is the only witness who was present during the conversation. Her testimony on the subject was credible. Principal Capitano testified that if a student brings up the topic of virginity to a teacher, the teacher should respond by saying that it is not an appropriate conversation to have. Meeting with the Guidance Counselor and Aftermath On March 12, 2018, Respondent became concerned that C.V. was exhibiting behavior that caused her to fear that he was considering harming himself. Although she did not believe that C.V. wanted to go, Respondent escorted him to see one of the school's guidance counselors, Kristen Saffici. Respondent took this action because she believed it was her obligation to do so based on C.V.'s behavior, which she considered potentially self-injurious. Counselor Saffici and Principal Capitano agreed that bringing C.V. to a guidance counselor was the appropriate course of action for Respondent under the circumstances. Respondent remained in the meeting with Counselor Saffici and C.V. Respondent told Counselor Saffici about her impressions of the problems C.V. was having. Over the course of explaining the background of what she believed to be C.V.'s problems, Respondent stated that she "loved him like a son." Counselor Saffici thought that the statement was inappropriate. From Respondent's perspective, saying that she loved C.V. like a son was a device she regularly employed with students to offset, or soften, a concurrent critical statement. During the meeting, Counselor Saffici observed that C.V. appeared withdrawn and sullen. He had his backpack on the table with his head down on the backpack and did not make eye contact. Respondent consoled C.V. by rubbing his head. Counselor Saffici believed that Respondent's behavior toward C.V. was not appropriate. Counselor Saffici, however, did not perceive the behavior to be sexual in nature. Based on her observations, Counselor Saffici believed that Respondent had no mal intent. It was her opinion that Respondent had C.V.'s best interest at heart. Following the meeting with Counselor Saffici, the school resource officer, Gary Chapman, interviewed C.V. independently to determine whether C.V. was a threat to himself or others. Officer Chapman concluded that C.V. was not considering self-harm at that time. Based on the interview, Officer Chapman's understanding was that C.V.'s emotional distress was related to his desire to see his biological father more often. C.V.'s parents met with Principal Capitano, Counselor Saffici, and Officer Chapman. Having determined that there was no reason to suspect a sexual relationship between Respondent and C.V., Officer Chapman closed his investigation. Principal Capitano told Respondent not to have further contact with C.V. The next day, C.V. came, unexpectedly, to Respondent's classroom to see her. Respondent spoke to him, but tried to get him to leave without alarming him or being rude. After C.V. left, Respondent immediately advised Principal Capitano and Counselor Saffici that he came to her classroom, and Respondent sought their guidance on what to do. Feeling that she did not have clear direction on what to do if C.V. came back, Respondent posted a Psalm on her door and left Don Estridge after her first-period class. In a letter dated March 16, 2018, Principal Capitano recommended Respondent's termination as a probationary employee at Don Estridge, effective March 27, 2018. The letter did not specify a reason for Respondent's termination, but stated: "Probationary Contract Employees may be dismissed without cause or may resign without breach of contract." Principal Capitano, however, testified that she recommended Respondent's termination because she believed that Respondent had violated the Code of Ethics. Specifically, Principal Capitano thought that Respondent put herself in a position where her relationship with a student was causing him duress. Following the events of March 12, 2018, C.V.'s parents arranged for C.V. to talk to a therapist. Thereafter, they observed improvements in his behavior. The content of the discussions C.V. had with his therapist was not conclusively established. Overall Nature of C.V. and Respondent's Relationship C.V.'s parents believed that C.V. saw Respondent as a girlfriend. However, they never thought that Respondent considered the relationship romantic or that anything sexual occurred. Some of Respondent's colleagues thought that her relationship with C.V. was uncomfortable or lacked appropriate boundaries. C.V.'s mother, viewed Respondent as a positive role model. In encouraging Respondent's relationship with C.V. in some respects, while attempting to establish more boundaries in others, C.V.'s parents were trying to balance the dramatic improvement in C.V.'s grades with what they believed to be C.V.'s unhealthy attachment to Respondent. Respondent believed that C.V. was very bright, but not applying himself in school. It was her desire to help him fulfill his potential. On a social level, she thought that he was a polite young man who shared hobbies with her husband and interacted well with her daughters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Amended Administrative Complaint and all charges contained therein. DONE AND ENTERED this 15th day of January, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2021. COPIES FURNISHED: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed) Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent graduated from college with a degree in elementary education in 1964. His first teaching position was in Dade County. He taught in Dade County from 1964 until 1970 or 1971, when he moved to New Jersey. After teaching for a year or two in New Jersey, Respondent returned to Dade County. He taught for another year or two in Dade County before relocating to California. Respondent did not work as a classroom teacher while in California. Among the jobs he held, however, was that of an education assistant at the San Francisco Zoo, a position which involved contact with children. Respondent moved back to Florida in 1987. Upon his return to the state, he applied for a temporary Florida teaching certificate in the area of elementary education. The Department of Education subsequently issued Respondent Temporary Certificate No. 159246. This certificate was valid from July 31, 1987, through June 30, 1988. Respondent has not held a valid Florida teaching certificate since the expiration of Temporary Certificate No. 159246. During the 1987-88 school year, Respondent was employed by the School Board of Broward County as a classroom teacher on annual contract status. He spent the entire school year at Nova Middle School. J.A. is a student at Nova Middle School. His date of birth is August 4, 1975. For the first nine weeks of the 1987-88 school year, J.A. was in Respondent's fifth period guidance class. He received a grade of "D" from Respondent. Respondent did not have J.A. as a student in any of his classes for the remainder of the 1987-88 school year. They did have some contact, however. On occasion, Respondent would bring into school reading material about reptiles and give it to a student in one of J.A.'s classes. Frequently, J.A., who, like Respondent and the other student, was interested in reptiles, joined their conversation on the subject. During at least one of these conversations, Respondent made reference to the many snakes he kept at home. His collection included approximately 300 snakes which he kept in his garage and other parts of his home. In addition to these snakes, Respondent also had sixteen cages of rats and mice and several turtles. J.A. asked if he could visit Respondent at home and see these animals. Respondent was not receptive to the idea of entertaining J.A. after school. Consequently, J.A. did not view Respondent's collection of animals during the 1987-88 school year. There were other instances during the 1987-88 school year where J.A.'s and Respondent's paths crossed at school. For instance, towards the latter part of the school year, when a substitute teacher with whom he did not get along taught his class, J.A. stayed in Respondent's room to avoid a confrontation with the substitute. J.A. and Respondent did not have any contact during the summer following the close of the 1987-88 school year. They next saw one another at registration for the following school year at Nova Middle School. Respondent had been offered another annual contract by the Broward County School Board and he was to teach the sixth grade at Nova Middle School. J.A. was to be a seventh grade student at the school. J.A. was accompanied at registration by his mother. He and his mother conversed with Respondent about, among other things, Respondent's collection of animals. Following registration, J.A. once again expressed to Respondent his desire to see Respondent's animal collection. This time Respondent capitulated. He told J.A. to have his mother call Respondent so that arrangements for such a visit could be made. Such arrangements were made and a few weeks after August 29, 1989, which was the first day of classes of the 1988-89 school year, J.A. and his mother visited Respondent at his home. During the visit, Respondent mentioned that he needed assistance to care for his animals. J.A. thereupon suggested that he be allowed to assist Respondent. J.A.'s mother indicated that she had no problem with J.A. coming to Respondent's home and helping Respondent. Respondent accepted the offer of assistance and told J.A. and his mother that he would compensate J.A. for the work he performed. Before J.A. and his mother left, Respondent gave J.A. a baby snake as a gift to keep. Following this visit, J.A. went to Respondent's home one or two times a week after school to assist Respondent in accordance with their agreement. For his efforts, J.A. received from Respondent either a snake or $3.50 for each hour he worked. J.A. did not come on any particular day or days of the week. He came when he was needed and when it was convenient for both he and Respondent, provided he had his mother's permission to be there on that particular day. On these workdays, Respondent drove J.A. from school to his home. Upon their arrival, they generally worked for one or two hours and then ate dinner and watched television before Respondent drove J.A. to J.A.'s home. Respondent did not attempt to hide the fact that J.A. was coming to his home after school to help him with his collection of animals. Among the people Respondent told were Steven Friedman, one of the assistant principals at Nova Middle School, Betty Brown, a fellow sixth grade teacher at the school, and Mary Rayder, Respondent's girlfriend. J.A. is not the only young person Respondent has hired to help him care for his animals. Other young persons who have worked for Respondent include a boy Respondent met at a pet shop and the boy's girlfriend; J.S., the teenage son of one of Respondent's friends; and M.F., who at the time was a thirteen year old former student of Respondent's. M.F. came to Respondent's house only once. His parents did not allow him to return because they were concerned for his safety after learning that he had fallen in the lake behind Respondent's home while he and Respondent were "playing around in a boat" and that he had taken a shower in Respondent's home following this incident. M.F. was not fully clothed when he fell into the water. He was wearing a boy's bathing suit that Respondent had loaned him. Although M.F. undressed and took a shower in Respondent's home, Respondent made no sexual advances towards him. There were other occasions during the 1988-89 school year that J.A. and Respondent had contact outside of school. One evening Respondent took J.A. to a lecture at the University of Miami. On another occasion Respondent brought J.A., J.A.'s cousin and J.A.'s friend to his home on a Saturday to allow J.A. to show the cousin and friend Respondent's animals. Betty Brown, one of Respondent's colleagues at Nova Middle School, and her nine year old son were also present during this Saturday visit. One weekend morning a couple of weeks following this Saturday visit, J.A., along with two friends, paid an uninvited visit to Respondent's home. Respondent let them in and quickly showed them his collection of animals. They then left on their bicycles. Although Respondent did not have J.A. as a student during the 1988-89 school year, they did see one another on occasion during the course of the school day early in the school year. Once or twice a week, J.A. went to Respondent's classroom to talk with Respondent about snakes. J.A. also approached Respondent at school on a regular basis to inquire as to when Respondent wanted him to come to Respondent's house to work. J.A. made such an inquiry of Respondent on the morning of Wednesday, October 26, 1988. He told Respondent that he wanted to come over that afternoon after school to work and to look at some photographs of zoo animals that had been the subject of a prior discussion between them. Respondent initially indicated that that afternoon would not be a good time for J.A. to be at his home because he was having some home repair work done and because, in any event, he was not feeling well. Since that previous Saturday, Respondent had been periodically experiencing stomach cramps and diarrhea. On Monday or Tuesday of that week he had made an appointment to see his doctor the following Friday concerning his condition. 2/ By the end of the school day on Wednesday, October 26, 1988, however, Respondent was feeling somewhat better. Furthermore, he had discovered that the person doing the repair work at his home had apparently finished for the day. Therefore, he had a change of mind regarding J.A.'s coming over to his house that afternoon. He so advised J.A. and the two left school together in Respondent's car. They proceeded directly to Respondent's home and arrived at their destination between 4:15 and 4:30 p.m. Upon their arrival, Respondent had J.A. telephone his mother to make sure that she knew that J.A. was at Respondent's home. After J.A.'s mother was contacted, J.A. and Respondent worked in Respondent's garage cleaning cages. At one point, Respondent had to excuse himself because he was again feeling nauseous. He went to the bathroom in his bedroom and remained there for five or ten minutes. When he opened the door of the bathroom to leave, he observed J.A. standing in Respondent's bedroom just outside the bathroom. At another point when they were in the garage together, Respondent noticed J.A. wrap a three and one-half to four foot snake in a newspaper and then place it in a plastic-lined garbage can. Respondent thereupon asked J.A., who appeared to be embarrassed that Respondent had discovered what he had done, "Do you realize what you just did?" Respondent then retrieved the snake from the garbage can and further inquired of J.A. if he had perhaps accidentally discarded a valuable king snake that had been missing from Respondent's collection for several weeks. J.A. responded in the negative. He told Respondent that the cage in which the king snake had been kept "was empty when he opened it." Later that afternoon, while cleaning the cages of some baby ball python snakes that Respondent owned, J.A. said something to the effect that all he would "have to do is throw one of these [baby ball pythons] away and come back and get it later." In response to this comment, Respondent told J.A., "You don't have to do that, [J.A.], you can have one." J.A. and Respondent finished working in the garage at approximately 6:30 p.m. They then ate dinner. After dinner, J.A. asked Respondent if he could look at the photographs that Respondent had taken when he was employed as an education assistant at the San Francisco Zoo. Respondent went to his bedroom closet to get the albums that contained these photographs. J.A. followed Respondent into his bedroom. After the albums were located, Respondent and J.A. left the bedroom and went to the living room where they looked at the photographs. By the time they finished examining the photographs, it was time for J.A. to leave. Before J.A. went home, however, Respondent gave him the baby ball python snake he had been promised by Respondent earlier in the day. Respondent dropped J.A. off at his home sometime between 7:30 and 9:00 p.m. that evening. J.A.'s mother greeted them as Respondent's car pulled into the driveway. For the next fifteen to twenty minutes she and Respondent engaged in a conversation. J.A. went into his house to deposit his snake and to retrieve some containers that belonged to Respondent, but he was present during most of the conversation between his mother and Respondent. Among the matters that J.A.'s mother and Respondent discussed was the possibility of Respondent, one of Respondent's friends and J.A. going on a snake hunting expedition. Respondent doubted that they would be able to go on such an expedition and he so advised J.A.'s mother, although he did not explain to her why he believed they would be unable to go. Notwithstanding Respondent's advisement, in an abundance of caution, J.A.'s mother handed Respondent a signed statement she had prepared authorizing Respondent to seek medical care and treatment for her son in the event they did go on the expedition and there was a medical emergency. The snake hunting expedition was not the only subject of J.A.'s mother's and Respondent's discussion that evening. They also talked about J.A. Respondent reported that J.A. was doing a good job assisting him in caring for his animal collection. His report on J.A., however, was not entirely positive. Respondent also told J.A.'s mother about how J.A., during his Saturday visit to Respondent's home a few weeks earlier, had boarded Respondent's paddleboat without Respondent's permission, paddled across the lake behind Respondent's home and then jumped head-first in the water. Respondent further mentioned to J.A.'s mother that the previous week J.A. had gotten into a heated argument at school with a substitute teacher, which resulted in J.A. being "pulled" from the substitute's class and brought to the teacher's lounge to stay with Respondent. After having been told this by Respondent, J.A.'s mother made mention of a similar incident which occurred the year before and led to J.A.'s suspension. She expressed the view that on this prior occasion J.A. had been treated unfairly by the school administration. At no time during their conversation that evening did Respondent tell J.A.'s mother what had happened earlier that evening in his garage. Although these events had led him to suspect that J.A. had stolen the missing kingsnake and perhaps other snakes, he was not absolutely certain that this was the case and, in view of his uncertainty, he decided not to make an issue of the matter and subject J.A. to parental punishment for an offense he may not have committed. After J.A.'s mother and Respondent finished their conversation, Respondent drove off and J.A. and his mother went into their home. Upon entering the home, J.A. told his mother that Respondent had "tried to suck, lick my penis." 3/ J.A.'s mother reported to the police what her son had told her. Both she and her son were interviewed at the Pembroke Pines police station at around 10:00 p.m. that evening. The following is what J.A. related to the police during the interview concerning his interaction with Respondent that day, as accurately reflected by the interviewing officer's police report: As [Respondent] spoke to J.A. during school hours, [Respondent] asked [J.A.] if he would like to come over after school and help clean cages. [J.A.] advised that he would not be able to today (10-26-88) due to the fact that his mother was expecting him home after school. [Respondent] advised [J.A.] that he would be able to telephone his mother from his [Respondent's] house upon their arrival. [J.A.] agreed to go to [Respondent's) residence and telephone his mother for permission. At the end of the school day [Respondent] and [J.A.] met at [Respondent's] classroom [Respondent] and [J.A.] walked from the classroom (approx 1600) to [Respondent's] vehicle in the parking lot. [Respondent] along with [J.A.] traveled in [Respondent's] vehicle to [Respondent's] residence arriving at approx 1630. [Respondent] and [J.A.] immediately moved to the garage area of the residence, where the snakes are caged, to begin cleaning. Periodically during the cage cleaning [J.A.] would stop to call his mother. [J.A.] was unable to reach his mother until approx 1700 hours when he advised her of his location. [J.A.] then returned to the garage and continued to clean cages with [Respondent]. At approx 1800 hours [Respondent] and [J.A.] agreed to discontinue the cleaning and obtain something to eat. [Respondent] and [J.A.] moved to the kitchen where they began to eat. While [Respondent) and [J.A.] ate they discussed [Respondent's] former job at the San Diego Zoo. [Respondent) advised that he had numerous pictures from the zoo and would like to show them to [J.A.] [J.A.] advised that he would like to see the pictures. As [Respondent) and [J.A.] finished eating, (approx 1900 hours) Respondent led [J.A.] to his bedroom where the pictures were kept. [Respondent) and [J.A.] sat on [Respondent's] bed, hanging their feet over the edge, and began looking at the photo albums. While [J.A.] was seated on the edge of the bed, [Respondent] repositioned himself on the floor directly in front of [J.A.]. [Respondent] then reached forward and grabbed [J.A.'s] pants zipper and pulled it down. 4/ [J.A.] was surprised when he felt the pulling on his zipper due to the fact that [Respondent] had positioned himself behind the photo album [J.A.] was examining. [J.A.] dropped the photo album 5/ and attempted to push [Respondent] away. [Respondent] overpowered [J.A.] and reached inside [J.A's] pants taking hold of [J.A.'s] penis. 6/ [Respondent] leaned over and began to lick and suck on [J.A.'s] penis. [J.A.] struggled free and advised [Respondent] that he was not that kind of person. [J.A.] then advised [Respondent] that he wanted to go home. [Respondent] agreed to take [J.A.] home; however, insisted that [J.A.] take one of his pet snakes as a gift. [J.A.] accepted the snake; however believes that [Respondent] gave him the snake as a bribe so he would not relate what had taken place to anyone. [Respondent] along with [J.A.] traveled to [J.A.'s] residence at approx 2000 hours. At around 1:00 a.m. on October 27, 1988, J.A. was examined by a physician at the Sexual Assault Treatment Center in Fort Lauderdale. The medical examination revealed no abnormalities. There were no cuts, bruises, or marks on J.A.'s genitals nor any other evidence suggesting that he had been sexually molested as he had falsely claimed to his mother and the police. Respondent reported to work on October 27, 1988, although he was not feeling particularly well. During the morning, his condition worsened and he requested permission to go home for the day. He did not call his doctor, inasmuch as he already had an appointment scheduled for the following day. Before he left, he gave a statement to a Pembroke Pines police officer who had come to the school to interview Respondent as part of his investigation of the allegations that J.A. had made against Respondent. The police officer was accompanied by a School Board of Broward County investigator. Upon being told of the accusation that J.A. had made, Respondent truthfully denied that anything of that nature had taken place the day before. He stated that he could think of nothing out of the ordinary that occurred that evening. When asked what might motivate J.A. to falsely accuse him of wrongdoing, Respondent was unable to offer any answer. He indicated that he thought that they had a friendly relationship. That same day, Respondent was suspended with pay from his position at Nova Middle School based upon the allegations of sexual misconduct made against him by J.A. He thereafter was suspended without pay by action of the School Board of Broward County based on these same allegations. Respondent has never before been accused of any similar act of misconduct. Furthermore, he has a good reputation for truth and veracity amongst his friends and associates. On June 30, 1989, Respondent's annual contract with the School Board of Broward County expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that (1) the School Board enter a final order dismissing Petitioner Morgan's charge of sexual misconduct against Respondent and providing Respondent with appropriate relief pursuant to Section 231.36(6)(a), Florida Statutes, and (2) the Education Practices Commission enter a final order dismissing the Administrative Complaint filed by Petitioner Castor against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of October, 1989. STUART M. LERNER 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 3rd day of October, 1989.
Findings Of Fact On or about October 22, 1968, the Petitioner began his employment with Respondent's Police Department as a police officer, reaching the position of second in command in the early 1970s. At all times material hereto, the Petitioner has held the rank of Captain, reporting directly to the Chief of Police as second in command of the Police Department. The duties of Captain include: (a) the supervision and coordination of subordinate personnel engaged in law enforcement activities; (b) planning, organizing, evaluating and directing personnel involved in station and field operations; (c) evaluating assigned personnel for efficiency and effectiveness; (d) reviewing all reports for accuracy; (e) representing the Police Department at civic, community and law enforcement meetings; (f) determining situations requiring personal attention and exercising optional command over dispatch operations; and (g) supervising the general direction and procedures of investigative actions. In addition, other duties may be assigned to the Captain by the Chief. Blaine LeCouris was the Chief of Police from 1975 to 1985. During the latter years of his tenure as Chief, LeCouris observed a reduction in Petitioner's performance. He was dissatisfied with Petitioner's performance in 1984 while he was serving as Acting City Manager and Petitioner was in charge of the day to day operations of thee Police Department. Petitioner was frequently absent from duty, and could not be reached. LeCouris removed certain training duties from Petitioner because of his dissatisfaction with his performance, and reassigned them to a subordinate officer. From August 1985 until April 1987, Carl Hernandez served as Chief of Police. During this time, the Petitioner did not carry out his duties in a satisfactory manner. He needed constant supervision and was regularly absent without explanation, showed little initiative, had a careless attitude, and was suspended for two days over an incident involving the police dispatcher. Hernandez removed certain administrative duties from Petitioner, and reassigned them to a subordinate due to Petitioner's inability to get things done in a timely manner. William Lyght served as Interim Chief from July to October 1987, and during this time he formed the opinion that Petitioner was a very poor administrator who could not meet deadlines, or communicate effectively with the public or others in the Police Department. He observed Petitioner sleeping in his office while on duty on three or four occasions, and regularly had difficulty finding him. Lyght testified that Petitioner did not have a "command grasp" of his position or its duties. He counseled Petitioner about his performance, as well as his excessive weight which he felt was hindering Petitioner's performance, but he did not discipline Petitioner since he was only serving on an interim basis. On October 27, 1987, Keith R. Bergstrom was appointed Chief of Police. Within his first few months as Chief, Bergstrom met with Petitioner on several occasions about his dissatisfaction with Petitioner's performance, including specifically his inattention to detail, absences, sloppiness of appearance and of work product, and his inability to direct and organize the employees of the Police Department. On January 11, 1988, an incident involving a hostage occurred in the City of Tarpon Springs. Petitioner was not at the hostage scene, and did not come to the scene when notified by telephone of the incident. Rather, Petitioner attempted to exercise partial command via the telephone from his home, and did not clearly delineate who was in charge at the scene. He testified that he was unable to come to the hostage scene because he was suffering from severe diarrhea, and his feet and legs were swollen badly. Chief Bergstrom verbally counseled Petitioner about this incident and wrote him a memorandum requesting his answers to specific questions about Petitioner's handling of this matter. In his written response, Petitioner incorrectly numbered several paragraphs, and in several places used incorrect words or spellings. The Petitioner has admitted that he has trouble with paper work, and with communications, either verbal or written. On February 2, 1988, Chief Bergstrom again counseled Petitioner, and wrote him a memo confirming the fact that on January 27, 1988, Petitioner had failed to carry out a specific instruction to seek out information, brief police officers, and provide for the proper supervision of the repossession of an automobile. Additionally, he was instructed to keep his beeper on while at home when he was serving as Acting Chief in Bergstrom's absence since there had been an incident on February 2, 1988, when Chief Bergstrom was out of town and the Petitioner could not be reached either by telephone or beeper. On March 10, 1989, Chief Bergstrom evaluated Petitioner's performance from October 1987 to October 1988, and issued a warning and a directive to correct deficiencies involving the quality and quantity of Petitioner's work, his ability to work with others, absenteeism and tardiness, and his personal demeanor. Petitioner's work was characterized as untimely, sloppy, inaccurate and incomplete. Bergstrom noted that Petitioner was unwilling to make decisions, or to accept responsibility for those he did make. Petitioner required constant, close supervision in order to get any work done, and Bergstrom concluded that Petitioner had to make "major improvements" in every evaluation category. Following this evaluation, Petitioner's work did not improve. Chief Bergstrom continued to counsel him about his performance, and ordered him to take a forty hour management course. On March 7, 1989, Petitioner was reprimanded because he had a City vehicle repaired prior to obtaining a purchase order, contrary to standard procedure. Petitioner offered as an explanation of his action that he wanted to return the vehicle to service as soon as possible, and that he felt the job had been done at the lowest possible cost to the City. On August 14, 1989, Chief Bergstrom wrote Petitioner a memo informing him that an auxiliary officer associated with the Police Department, who had been hired by the Petitioner while he was Acting Chief, had been arrested that day on three counts of the sale and possession of cocaine. Chief Bergstrom requested some background information on this auxiliary officer's hiring. In response, Petitioner wrote that the position of auxiliary officer "is not a sworn position", and that this officer was only a "helping officer." Petitioner's response evidences that he did not understand the nature of the position of auxiliary officer, nor the need to make more complete background checks of such officers before they are hired. In his position as Captain, Petitioner was responsible for the payroll, and in that capacity had been authorizing the payment of premium holiday pay whether an employee worked one hour on a holiday or some longer period. Chief Bergstrom became concerned about this practice because, at times, work on a holiday would only constitute part of a shift. He felt that premium pay should only be paid for that part of a shift falling on the holiday, and the remainder of the shift should be paid at their regular rate of pay. In response to Bergstrom's concerns, the Petitioner wrote him a memo on September 7, 1989, stating that to his knowledge there was no set policy on the subject, and that if an officer worked any part of his shift on a holiday, it had been his practice to pay the officer for his entire shift at premium pay, if the officer requested such payment. Because the Petitioner had been in charge of payroll ever since Bergstrom had become Chief, Bergstrom felt that a uniform policy on this subject should already have been developed. As a result, in the Fall of 1989, Chief Bergstrom directed Petitioner to develop a payroll manual so that there would be definite, uniform policies to cover all payroll functions. Bergstrom changed Petitioner's assignment and placed him in charge of "special projects" in order to give him time to devote to this project almost exclusively, and also because Petitioner had announced his intention to run for the City Council. Deadlines were established by Bergstrom for Petitioner's completion of this manual, but at Petitioner's request these deadlines were extended several times. Finally, on January 3, 1990, Chief Bergstrom directed that Petitioner turn over to him whatever work he had completed on the manual. After two months, the document was not close to being in final form. This failure to complete an assigned project was consistent with Petitioner's performance on other special projects assigned to him, which ultimately required Chief Bergstrom to take more time correcting errors and checking for completeness than if he had done the entire project himself. Patricia Haynes is the secretary in the Chief's office who worked with both the Chief and the Captain. She testified that she observed Petitioner sleeping at his desk and by the coffee pot during the workday on several occasions, and that Petitioner was frequently hard to find during the workday. It was the established policy of the Police Department to require all employee's to report outside employment. This policy was initially set forth in a memo from then-Chief Hernandez in April 1985, and was confirmed in March 1989, through a memo from the Personnel Department reminding all employees of this policy. On December 15, 1989, the Petitioner completed a Notification of Outside Employment form in which he indicated he had begun outside employment delivering newspapers at night in October 1989. In fact, Petitioner began employment delivering newspapers with the St. Petersburg Times on May 27, 1989. Although he indicated to Chief Bergstrom that he had been unaware of this established policy, Petitioner had been Captain of the Police Department and second in command from the initial inception of this policy. Other officers of lower rank who Petitioner identified as also having failed to comply with this policy, contradicted his testimony and stated that they had, in fact, filed the appropriate notification form. Rule 8 of the City's Personnel Rules and Regulations has been in effect and has remained the same at all times material hereto, requiring all employees to provide information about outside employment prior to beginning employment. The failure to furnish such information is deemed an infraction and a separate cause for dismissal. On October 30, 1987, Chief Bergstrom directed Petitioner to lose weight to a level appropriate to his height and age. Petitioner informed Bergstrom that he was about to begin an extensive weight loss program, including counselling, which might take up to two years to complete. The Chief indicated that if requested by Petitioner he would recommend that Petitioner be given financial assistance for this program. It was the opinion of Bergstrom that Petitioner was not physically fit to perform his duties and that his physical appearance engendered disrespect for his rank and the Police Department as a whole. Petitioner is between 5 feet 8 to 5 feet 10 inches tall, and his birthdate is June 24, 1942. During the time when William Lyght served as Interim Chief, Petitioner's weight exceeded 400 pounds. Approximately one month prior to the hearing in this matter, Petitioner's weight was found to be 346 pounds, according to Maurice Bonilla, M.D. At all times material hereto, Petitioner has been severely overweight, with a weight that is not appropriate for his height and age. In early 1988, Petitioner enrolled in the weight loss program at Total Fitness, Inc., and according to Dean Cosgrove, who was accepted as an expert in weight counselling, Petitioner weighed 383 pounds at the beginning of this program, and by April 1988, his weight had been reduced to 341 pounds. To achieve this weight loss, Petitioner was put on a liquid diet of 520 calories a day, with walking exercises. He had minimal side effects from this liquid diet, according to Cosgrove. However, Petitioner discontinued the program from May 1988 to January 1989, when he reenrolled and was weighed at 373 pounds. In November 1988, Petitioner incorrectly informed Chief Bergstrom by memo that he was still on the weight loss program through Total Fitness, but that he had been taken off the liquid diet for health reasons. There is nothing in the record to substantiate Petitioner's memo of November 22, 1988, to Bergstrom concerning the status of his weight loss program. After resuming the program, Petitioner reduced his weight from 373 pounds in January 1989, to 348 pounds in March 1989. Cosgrove testified that he is unaware of any reason why Petitioner could not lose weight on the Total Fitness program. There is no record of Petitioner suffering from severe diarrhea while on the liquid diet program. In September 1989, Petitioner enrolled in a different program to tone muscles and improve his appearance through a facility called Tender Toning. At the start of this program, his weight was 338 pounds and in November 1989, when he discontinued this program, his weight was 332 pounds. Marcus Occhipinti, M.D., who was accepted as an expert in medicine, characterized Petitioner as "excessively obese", and diagnosed him from his medical history as having "Pickwickian syndrome" which causes sudden, unexpected sleepiness during the day, and which can only be cured through weight loss. Dr. Maurice Bonilla characterized this condition as a disorder of obesity which causes a person to spontaneously fall asleep without warning. Dr. Bonilla did not diagnose Petitioner as having this condition. Dr. Occhipinti testified that he told Petitioner that he had Pickwickian syndrome on his first visit with him, but Petitioner denied he was ever told of this condition and does not feel that he has it. According to Dr. Bonilla, who was as accepted as an expert in medicine and who specializes in the treatment of high risk obesity patients, 170 pounds is an appropriate weight for a person 5 feet 8 inches tall with a large frame like Petitioner's. An appropriate and reasonable goal weight for Petitioner would be 200 pounds, the goal suggested by Chief Bergstrom for Petitioner. Dr. Bonilla's experience in diagnosing and treating obese patients is far greater than Dr. Occhipinti's, and therefore, Dr. Bonilla's testimony is found to have greater weight than that of Dr. Occhipinti. Even Dr. Occhipinti, however, testified that there is no medical reason why Petitioner cannot lose weight. It is found, therefore, that Petitioner's overweight condition is not due to any disability, including Pickwickian syndrome. On December 27, 1989, Chief Bergstrom delivered to the Petitioner a direct order that he appear at Dr. Bonilla's office on January 3, 1990, so that he could be weighed to determine what progress, if any, he had made in achieving any weight loss. The Petitioner did not keep this appointment. Prior to January 3, 1990, a law suit was initiated on Petitioner's behalf in Federal District Court, and a protective order was sought to prevent Petitioner from having to keep this appointment. On January 4, 1990, the day after the scheduled appointment, an Order was entered in Case No. 89-1634-CIV-T-17C which stayed the physical examination of Petitioner until further Order of the Federal District Court. Chief Bergstrom has warned others in the Police Department about being overweight. Specifically, on February 9, 1989, Chief Bergstrom noted on his evaluation of Bobby Lockhart, Jr., a narcotics detective, that he had to reduce his weight. At that time, Lockhart, who is six feet tall, weighed 375 pounds. In response to counselling and a concerted weight loss program, by February 1990, Lockhart had reduced his weight to 277 pounds. Despite Petitioner's assertion that there are other overweight officers in the Police Department who have not been ordered to reduce their weight as he has been, no evidence was introduced to show that there are any other sworn officers in the Tarpon Springs Police Department whose stature is even remotely comparable to Petitioner's. To the contrary, it appears that Petitioner's overweight condition was by far the most severe among officers in the Police Department, which was particularly problematic for the person holding the position of second in command. Chief Bergstrom reasonably felt that Petitioner's weight hindered him in the performance of his duties, and that others in the Police Department and the public may view Petitioner's overweight condition as an indication of his lack of concern or interest in his position, and an absence of willpower and a sense of accountability, and that his appearance could reasonably be expected to engender a lack of respect for him in his position as second in command and for the Police Department. On January 9, 1990, Petitioner was informed that Chief Bergstrom had recommended that he be terminated, and he was given the right to respond to Bergstrom's charges that he had violated Rules 18(1)(b) and (1)(k) of the City's Personnel Rules and Regulations. After considering Petitioner's responses through counsel to these charges, a Notice of Discharge and Statement of Charges was issued to Petitioner, dated January 15, 1990, and approved by the City Manager on January 19, 1990, based upon Rules 18(1)(b) and (1)(k). This dismissal was effective on January 19, 1990. Thereafter, Petitioner timely filed an appeal of this matter before the City's Civil Service Board pursuant to Rule 18(9), and the final hearing in this case was held by the undersigned at the request of the Civil Service Board and with the agreement of the parties.
Recommendation Based upon the foregoing, it is recommended that the appeal of B. F. Johnson, Petitioner, be DISMISSED, and that his dismissal be AFFIRMED. DONE AND ENTERED this 20th day of September, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. COPIES FURNISHED: John A. Shahan, Esquire 526 East Tarpon Avenue Tarpon Springs, FL 34689 Thomas M. Gonzalez, Esquire 109 North Brush Street Suite 200 Tampa, FL 33601 Courtenay N. Crutcher, Chairman Civil Service Board City of Tarpon Springs P. O. Box 5004 Tarpon Springs, FL 34688-5004 Anthony L. Shoemaker, City Manager City of Tarpon Springs P. O. Box 1575 Tarpon Springs, FL 34686-1575
Findings Of Fact C. R. Higginson (hereafter Respondent) is a licensed barber and barbershop owner, holding Florida licenses BB 11355 and BS 8886. Respondent owns and operates the Bonita Springs Barber Shop, located at 26671 Old U.S. 41 S.E., Bonita Springs, Florida 33923. On April 25, 1991, Frank Paolella, an inspector for the Department of Professional Regulation, entered the Respondent's barbershop and performed a routine inspection of the premises for compliance with the rules of the Barber's Board. The Respondent was not present during the inspection. At the time of the inspection, there were a number of persons in and around the premises, however, the inspector observed no one sitting in the barber's stations chairs or having their hair cut. The inspector noted several violations of the Board of Barbers requirements. Three barbers stations contained equipment which was not sanitized and was covered with hair. 5 Five stations contained equipment which had been cleaned and sanitized but which was not stored in a clean cabinet. Six garbage pails located at barber stations were uncovered and contained hair and trash. One barber's license was not displayed. Prior to the inspector's departure, the barber located the license behind his sterilizer cabinet and displayed the document. The testimony of the Respondent's witness, one of the barber's present at the time of the inspection, directly contradicted the testimony of the Petitioner's inspector. The testimony of the Petitioner's inspector is credited and such conflicts have been resolved in Petitioner's favor.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Board of Barbers' enter a Final Order imposing an administrative fine of $350.00 against the Respondent. DONE and RECOMMENDED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintenance of a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition to the student bodies in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970, litigation was commenced in Federal Districts Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to establish a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to attempt to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain the required "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions in order to accommodate the burgeoning enrollment. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, A J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School actually rose from six percent during the 1980-81 school year to nine percent during the 1981 82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of under-enrollment at Ely High School and Pompano Beach High School, both of which are located in the eastern portion of the county. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barbara Most, Lorraine Shifrel and Thomas Bell are each residents of North Lauderdale with children who, under the rule here in dispute, are assigned to and attend Ely High School. Ely High School is located approximately 10-1/2 miles from the Most home, while the recently opened J. P. Taravella High School is approximately two miles from their home. Taravella High School is also located two miles from the Shifrel home, while Ely High School is located some distance farther away. Finally, Ely High School is located approximately 15 miles from Petitioner Bell's home, whereas Taravella High School is only three and a half miles away, and Coral Springs High School is only four miles from his home. Petitioner Sylvia Liberto lives approximately two and one-half miles from Taravella High School. However, she has one child who is assigned to Coral Springs High School, which is located five miles from her home, and another child who is assigned to Pompano Beach High School, which is located approximately 17 miles from her home. Petitioners object to their children being assigned to Ely High School and Pompano Beach High School when they feel they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners also object to their children being subjected to a lengthy bus ride twice daily to and from either Ely or Pompano Beach High Schools, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the North Lauderdale area in which all Petitioners' residences are located has been zoned to attend either Ely High School or Pompano Beach High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school.
The Issue The issue is whether Respondent properly considered prior teaching experience when calculating an appropriate salary for Petitioners.
Findings Of Fact All Petitioners were employed by the Board as full-time Florida certified public school teachers under a series of successive annual contracts. The Board operates under a Collective Bargaining Agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association (EEA), the collective bargaining agent that represents teachers. A negotiated salary schedule is then recommended by the superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes (2007), to the Board for approval and adoption. The salary schedule adopted by the Board governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part, upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. All Petitioners received an annual instructional contract under the authority of Subsection 231.36(3), Florida Statutes, or later, Subsection 1012.33(3), Florida Statutes. Petitioners' annual instructional contracts set forth the contract salary on an annual basis payable through 12 monthly installments. The contracts specify the number of days to be worked and the daily rate of compensation. The Board's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." All Petitioners performed the agreed-upon instructional services and, individually, were paid the agreed-upon contractual amount, as provided in the "Master Contract 1999-2002" or "Master Contract 2004-2007," as appropriate. This included the amount paid for years of service or "steps" as provided in the Master Contracts. Petitioners Davis, Elleard, Lanier, Malone, Outzen, and Taylor, however, protested the steps they were assigned. As shall be addressed below, the Master Contract allowance for steps was less than that required by Florida law subsequent to July 1, 2001. Petitioners' annual instructional contracts specify the salary paid through 12 monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, her pay will be reduced to compensate for the hours of leave without pay taken. The Board maintains ledgers with all the compensation information for its employees, including Petitioners. Petitioner Margaret Benson has been employed by the Board as a full-time public school teacher since August of 2002. Prior to her employment with the Board, Ms. Benson was a full-time public school teacher in New Jersey and Tennessee for 17 years. For each of those 17 years, Ms. Benson received satisfactory performance evaluations. Upon being hired by the Board, Ms. Benson was given credit for 15 of the 17 years of her prior teaching experience. Ms. Benson has requested that the Board recognize each of her 17 years of teaching service. In March or April 2007, the Board recognized one additional year of Ms. Benson's experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to whether Ms. Benson requested recognition of her entire teaching service, prior to the filing of this lawsuit. Petitioner Reba Davis was employed by the Board as a full-time public school teacher for the 2003-2004 and 2004-2005 school years. Prior to her employment with the Board, Ms. Davis was a full-time public school teacher in Florida, Oklahoma, Alabama, and Kentucky for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Davis received satisfactory performance evaluations. Upon being hired by the Board, Ms. Davis was given credit for all but five years of her prior teaching experience. Ms. Davis has requested that the Board recognize each of her 25 years of teaching service. The Board has denied the request for the period of 2003-2005 school years. Ms. Davis retired from teaching in 2005, but is not using the five years of teaching credit toward her retirement benefit, which was earned outside the State of Florida. At the time she began her service with the Board Ms. Davis made inquiry with Mary Helen Fryman of the Board's Human Resources Office as to why she was not given credit for all of her prior experience. She was informed by Ms. Fryman that the matter was, "Still under negotiation and that she knew I would be given . . . my experience for my years in Florida." She made additional inquiries of the teachers union and the Board and was told that, "They were still in the bargaining stages and they were still not clear." Petitioner Deborah Elleard has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Elleard was a full-time public school teacher in Alabama for 29 years. For each of those 29 years as a full-time public school teacher, Ms. Elleard received satisfactory performance evaluations. Ms. Elleard retired from the State of Alabama and when hired by the Board, Ms. Elleard was not given credit for her 29 years of prior teaching experience. Ms. Elleard has requested that the Board recognize each of her 29 years of teaching service. In March or April 2007, the Board recognized her 29 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2003 through May 31, 2006. When Ms. Elleard was hired she made inquiry as to why she was not receiving credit for her 29 years of teaching service. She was informed then and several times thereafter that the Board was working on the matter and that it would be resolved. Petitioner Deborah Gregory was employed by the Board as a full-time public school teacher beginning August 2002 until her resignation following the conclusion of the 2005-2006 school year. Prior to her employment with the Board during the relevant time, Ms. Gregory was a full-time public school teacher in Alabama, Escambia County, and Orange County for 16 years. For each of those 16 years as a full-time public school teacher, Ms. Gregory received satisfactory performance evaluations. Upon being hired by the Board in 2002, Ms. Gregory was given credit for 15 of her 16 years of prior teaching experience. Ms. Gregory has requested that the Board recognize each of her 16 years of teaching service. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to when or if Ms. Gregory requested recognition of her entire teaching service. Petitioner Ida Lanier has been employed by the Board as a full-time public school teacher since August 2001. Prior to her employment with the Board, Ms. Lanier was a full-time public school teacher in Alabama for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Lanier received satisfactory performance evaluations. Ms. Lanier retired from the State of Alabama, and upon being hired by the Board, Ms. Lanier was denied credit for her 25 years of prior teaching experience. Ms. Lanier has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Lanier's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. When she was hired, Ms. Lanier inquired as to why she did not get credit for prior service and she was told it was because she was retired from another state. She was informed that the collective bargaining agreement prevented the credit but that the situation might change. She continued over time to make inquiry to both her union and the Board. Petitioner Phyllis Malone has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Malone was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Malone received satisfactory performance evaluations. Ms. Malone retired from the State of Alabama and upon being hired by the Board, Ms. Malone was given credit for 15 of her 25 years of prior teaching experience. Ms. Malone requested that the Board recognize each of her 25 years of teaching service. In August 2006, the Board recognized each of her 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Malone had conversations with the Board's Human Resources Office and wrote a letter to Dr. Scott of the Board and talked to Judy Fung of the Board, inquiring as to why she was not receiving credit for past experience. During the time she taught, she continued to make inquiries. Petitioner Vicki Outzen has been employed by the Board as a full-time public school teacher since August 2002. Prior to her employment with the Board, Ms. Outzen was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Outzen received satisfactory performance evaluations. Ms. Outzen retired from the State of Alabama and upon being hired by the Board, Ms. Outzen was not given credit for her 25 years of prior teaching experience. Ms. Outzen has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Outzen's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Outzen made inquiries of the Board at the time she was hired and continuously during her employment with regard to the Board's refusal to give her the requested credit. She was informed that negotiations with the union were in progress and that she should continue to "check back" with the Board. She continually checked back with Ms. Fryman, Director of Human Resources at the Board, and was told in a letter that because she was retired from another state she must start teaching at step zero. Petitioner Janet Taylor has been employed by the Board as a full-time public school teacher since September 11, 2002. Prior to her employment with the Board, Ms. Taylor was a full-time public school teacher in Alabama for 30 years. For each of those 30 years, Ms. Taylor received satisfactory performance evaluations. Ms. Taylor retired from the State of Alabama and upon being hired by the Board, Ms. Taylor was not given credit for her 30 years of prior teaching experience. Ms. Taylor has requested that the Board recognize each of her 30 years of teaching service. Respondent has failed to recognize any of Ms. Taylor's prior years of teaching experience. The Board led Ms. Taylor to believe that she would be notified by the Board when she would be eligible to receive credit for prior teaching experience. For the years Petitioners are seeking credit, those years were not earned under the Florida Retirement System (FRS) as codified in Chapter 121, Florida Statutes (2007). If the Petitioners had been paid as they assert, the Board would be required to pay Petitioners as follows: Margaret Benson for an additional step for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Reba Davis for five steps for school years 2003-2004 and 2004-2005. This amount totals $11,423. Deborah Elleard for 29 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $52,895. Deborah Gregory for one step for school years 2002- 2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Ida Lanier for 25 steps for school years 2001-2002, 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $83,561. Phyllis Malone for 10 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $28,692. Vicki Outzen for 26 steps for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $66,338. Janet Taylor for 30 steps for school years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. This amount totals $101,427.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board recalculate Petitioners' salary as of April 2, 2005, so that their salaries reflect the amount each should have earned if Petitioners had been given credit for each year of full-time public school teaching service earned in the State of Florida or outside the state, and pay them that amount. It is further recommended that Petitioners receive pay at all future times as provided by Subsection 1012.33(3)(g), Florida Statutes (2007), and this Recommended Order. It is further recommended that the Escambia County School Board remit to Petitioners a reasonable attorney's fee. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
The Issue The issue in this case is whether Petitioner has just cause to suspend and terminate Respondent from her contract.
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Gomez has been employed by the School Board for about ten years.6/ Ms. Gomez is a Florida-certified teacher. She is certified to teach exceptional student education (ESE), regular education (kindergarten through sixth grade), and English as a second language (ESL). As a member of the School Board's instructional staff, Ms. Gomez's employment contract was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. A copy of the teacher's employment contract was not offered into evidence, nor was the applicable collective bargaining agreement. As a teacher, Ms. Gomez was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. Ms. Gomez has not been previously disciplined by the School Board. Of the School District personnel performance plan for teacher development assessment forms introduced at hearing, Ms. Gomez received "High Performance" ratings in all categories for three consecutive school years beginning in August 2006 through the end of the school year in June 2009.7/ During the 2011-2012 school year, Ms. Gomez was an ESE kindergarten teacher at Sunrise Elementary School (Sunrise). Arima Santana and Austria Medina de Luna were the two para- professionals assisting in Ms. Gomez's classroom of six or seven ESE students. Ms. Gomez demands a lot of work from her para- professionals because her ESE students demand a lot of direction and attention. She uses teaching centers throughout her classroom for writing, reading, computer activities, and math. Each student has an individual education plan (IEP) with goals, and everything is geared to help the students reach those goals. Ms. Gomez taught the reading and math components and was ultimately responsible for the running of the classroom. Ms. Santana was first employed at Sunrise as an ESE assistant starting with the 2011-2012 school year. Prior to her Sunrise employment, she worked in an office at Flora Ridge Elementary School (Flora Ridge) as an IEP assistant. In this IEP position, she was responsible for making sure all the Flora Ridge students' IEPs were in order and in compliance. Although Ms. Santana has a ten-year-old autistic child8/ and appeared to have some knowledge of autism, her formal education or training as a teacher or teacher's aide in ESE, specifically autism or otherwise, was not documented, discussed, or provided at the hearing. Ms. Santana was in charge of the writing center. She had crayons at her work center. Additionally, she brought in jumbo-size crayons to assist the students with their writing skills. Ms. Santana usually had one or two students at a time, and, when she had a higher functioning student on one side, she would generally have a lower functioning student on the other side. She employed the "hand-over-hand" writing technique to help guide the students in forming their letters, which means that she would place her hand over the student's hand to guide their writing. Her attention would be focused on that student while the other student attempted other work. There were other crayons at other locations in the classroom. Ms. Santana was an assistant to Ms. Gomez; however, at some point in October, she requested a transfer to Flora Ridge. Ms. Santana felt uncomfortable in Ms. Gomez's classroom; yet, she did not explain to the Sunrise administration her reason for requesting the transfer. Ms. Santana and Ms. Gomez differed on their approaches to teaching the ESE students. Ms. de Luna was first employed at Sunrise as an extended-day program worker for the 2010-2011 school year. The following year, Ms. de Luna was hired as an ESE assistant in Ms. Gomez's classroom. Ms. de Luna has a degree in civil engineering and maintained a Florida teaching certificate for several years.9/ Ms. de Luna was in charge of the computer center. She was also responsible for transitioning the students from one center to another and assisting the students with their bathroom needs. She usually had two or three students at the computer center at a time. Ms. de Luna had taught lower- performing students in math subjects before, but her training in ESE or autistic students was limited to a course or two offered by the School Board. Ms. de Luna and Ms. Gomez did not share the same teaching techniques or experiences, and Ms. de Luna called Ms. Gomez a witch because of her teaching techniques. J.A. (or the student) was a non-verbal, five-year-old, autistic student in Ms. Gomez's classroom. J.A. functioned at a lower level than the other students. J.A. was known to eat inedible objects such as rocks, mulch, and crayons prior to entering Ms. Gomez's classroom. An IEP is developed by a specific committee (comprised of the student's parent(s), an ESE and regular education teacher, and related school district service personnel) for students with special educational needs to ensure that the child receives a free and appropriate public education in the least restrictive environment. An IEP is created to address the specific instruction, related services, accommodations, supplemental aides, and services that an exceptional student needs to be successful. The School Board directs that the ESE teacher is responsible for "drafting the IEP." J.A.'s father10/ was present when the IEP was written on June 3, 2011, following J.A.'s evaluation on March 31. There was no mention in the IEP that J.A. had a propensity to place inedible objects in his mouth, and, therefore, there was no goal established for him to stop the behavior. However, both J.A.'s occupational therapy assessment (date of test: April 25, 2011) and J.A.'s psycho-educational reevaluation report (evaluation date: March 31, 2011) reflected that J.A. "seems to need to have something in his mouth" and "puts inedible things in his mouth." The report also contained some "stereotyped behaviors" that J.A.'s father reported to the psychologist. It was recorded that J.A. would frequently "lick, taste or attempt to eat inedible objects."11/ The School Board personnel were aware of J.A.'s propensity to eat inedible objects; yet, there was no plan to modify that behavior. Several School Board personnel placed the responsibility for addressing this issue with others involved with J.A. Unfortunately, no person in authority timely took that necessary action. Ms. Gomez was not J.A.'s ESE teacher when the IEP was drafted in June 2011,12/ nor was she present when it was discussed or written. Linda Schroeder-King is the co-coordinator for ESE for the School Board. Her position involves administrative duties as well as the supervision of the special educational services for students throughout the district. She is familiar with the Individuals with Disabilities Education Act (IDEA) and the School Board's policies and procedures regarding ESE students and their needs. The School Board utilizes positive behavior support for all students. The School Board does not have a document that contains an approved aversive therapy policy and procedure, nor does the School Board have someone who is responsible for approving aversive therapies. Ms. Schroeder-King testified that a behavior analyst would do an evaluation and would have to make a recommendation, but that the recommendation would have to be approved. Yet, no person was identified who could approve (or disapprove) such a recommendation. J.A. was assigned to Ms. Gomez's classroom and began the 2011-2012 school year in August 2011. Shortly after the school year began, Ms. Gomez, Ms. Santana, and Ms. de Luna each noticed that J.A. put inedible objects in his mouth while in the classroom and on the playground. J.A. participated in the various centers around the room.13/ It was while at the writing center that Ms. Santana noticed that, when she turned to assist another student, J.A. would grab crayons and put them in his mouth. Although not done daily, J.A. would frequently grab a crayon and chew it. Ms. Gomez or one of the para-professionals would attempt to remove the crayons from J.A.'s mouth; however, when an autistic child clinches his mouth shut, there is little that can be done to open it. Sometime in early October 2011, in an attempt to modify J.A.'s eating of inedible objects, Ms. Gomez peeled the paper wrapper off several jumbo-size crayons and placed them in a disposable cup. She then poured Louisiana hot sauce over the crayons. Ms. Gomez allowed the cup of hot sauce crayons to sit. Then Ms. Gomez removed the hot sauce crayons, placed them on a towel, and allowed them to dry. There was a strong odor to those hot sauce crayons. Ms. Gomez instructed Ms. Santana to put the hot sauce crayons in a plastic zip-lock baggie labeled with J.A.'s name and directions that other students were not to use those crayons. Ms. Santana complied with this request. There was no evidence presented that the hot sauce crayons retained any of the hot characteristics of hot sauce other than a strong odor. Although the baggie with the hot sauce crayons was placed on the table at the writing center for several days, neither Ms. Santana nor Ms. de Luna ever saw Ms. Gomez put a hot sauce crayon in J.A.'s mouth. Ms. Santana saw J.A. pick up other non-hot sauce crayons and chew or mouth them while at the writing center during that time. Play-doh was also in the classroom; however, it was seldom if ever used. None of the classroom adults observed J.A. grabbing, mouthing, chewing or eating any Play-doh at any time. At approximately the same time as the hot sauce crayons were made, Ms. Gomez also massaged hot sauce into some black Play-doh. As directed, Ms. Santana placed the hot sauce Play-doh in a separate plastic zip lock baggie labeled with J.A.'s name and directions that other students were not to use that Play-doh. At the time of the alleged Play-doh event, Ms. Santana was at the writing center while Ms. Gomez was at her desk with J.A. Ms. Gomez made some statement and Ms. Santana turned to see what was happening. Ms. Santana testified that Ms. Gomez placed "a little piece of play-doh" or "physically put a piece" in his mouth and that J.A. spit it out. Ms. Santana's testimony is undermined by her inability to describe other details surrounding the alleged incident.14/ Ms. de Luna repeatedly testified that, when Ms. Gomez allegedly said "look, look," Ms. de Luna turned away because she did not want to watch what was happening with J.A. Yet, she testified that she did not see J.A. spit anything out, that he just chewed something. Her testimony contradicts what Ms. Santana said she saw and does not support any visual confirmation of what was or was not placed in J.A.'s mouth. Ms. Gomez denies she ever put Play-doh or anything in J.A.'s mouth. Based on the totality of the Play-doh evidence, there is no basis in this case to credit Ms. Santana's testimony over that of Ms. Gomez. Ms. Santana, while a sincere witness, was unable to provide specific details, and her testimony is insufficient to support a finding of guilt as to the alleged Play-doh incident. Ms. Santana did not balk at bagging the hot sauce crayons or Play-doh and did not confront Ms. Gomez after she witnessed the alleged Play-doh incident. Ms. Santana did not attempt to determine whether or not J.A. was harmed in any fashion. While it is understood that J.A. was non-verbal, he did have other means of communication. J.A. could point to things and did engage in classroom activities, albeit in an unconventional manner. J.A. did not show any reaction to the alleged Play-doh incident. Further, as no one ever saw Ms. Gomez place a hot sauce crayon in J.A.'s mouth, and no one saw a hot sauce crayon in his mouth, there was no reaction to see. On October 14, 2011, several days to a week (or longer) after the alleged Play-doh incident, Ms. de Luna and Ms. Gomez had a conference with Cara Colovos, Sunrise's assistant principal. The conference was allegedly about on-going issues between the two.15/ There was an airing of grievances from both parties. Ms. de Luna gave the hot sauce bottle, the bag of hot sauce crayons, and the bag of hot sauce Play-doh to Ms. Colovos. There is no credible evidence that Ms. Gomez "insisted on the child [J.A.] actually licking or eating"16/ the hot sauce crayons or Play-doh or that she "made sure that the student put these materials [hot sauce crayons and hot sauce Play-doh] in his mouth." (emphasis added). J.A. was at Ms. Santana's writing center when the hot sauce crayons were present. And, although Ms. Santana allegedly saw Ms. Gomez put Play-doh in J.A.'s mouth, the specific allegation was either he licked or ate the Play-doh (which he spit out), or he put the Play-doh in his own mouth, which he did not. In this case, it is clear that placing hot sauce on crayons and Play-doh warrants some form of discipline. Although no noticeable harm came to the student or any student, the mere creation of the material is contrary to School Board policy. There was no credible evidence introduced that Ms. Gomez's effectiveness as a teacher in the school system was impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by Petitioner, Osceola County School Board: (1) finding Respondent's behavior to be inappropriate; (2) upholding the suspension without pay to- date; (3) reinstating Respondent as a classroom teacher; and placing her on probation for a period of not less than two years. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2012.
The Issue The issues in this case are whether Respondent committed the offenses charged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida educator’s certificate and who are alleged to have violated one or more provisions in section 1012.795 and implementing rules. Respondent holds Florida educator’s certificate 777352, covering the area of social science, which is valid through June 30, 2020. Prior to becoming a teacher, Respondent was in the military for 21 years, serving as a soldier and non-commissioned officer in the U.S. Army. Respondent describes himself as a “great leader,” a skill he believes he developed in the Army. Respondent was employed as a teacher for the Lee County School District (School District) beginning in 1998 or 1999.6/ He taught social science classes at Bonita Springs Middle School until 2009. A former student who attended that school between 2002 and 2004 spoke highly of Respondent as her teacher. That student has not been in a classroom with Respondent since 2004. Beginning in early 2005, Respondent’s record as a teacher at Bonita Springs Middle School became spotted with disciplinary measures being regularly taken against him. The matters for which Respondent was disciplined were similar, evidencing a pattern of inappropriate physical contact with students, angry outbursts, conflicts with principals, and inappropriate classroom conduct, including ridiculing, embarrassing, and yelling at students. In February 2005, at the request of the Bonita Springs Middle School principal, Respondent attended an in-service training on Anger Management and De-Escalation Training. Despite that training, between 2005 and 2009, Respondent received six letters of reprimand from three different principals and two different directors of the School District’s Department of Professional Standards and Equity (DPSE). The letters of reprimand were for incidents described as: pushing a student (letter of reprimand, March 2, 2005); inappropriate physical contact--putting his hands in the pants of a female student (letter of reprimand, September 27, 2005); shoving two students out of the classroom (letter of reprimand, March 2, 2006); shouting at students in the hallway in a very harsh and loud tone (letter of reprimand, September 22, 2006); exposing students to unnecessary embarrassment or disparagement (letter of reprimand, August 6, 2009); and kicking three students out of class, and yelling at the remaining students in the classroom, “You all are a bunch of idiots” (letter of reprimand, October 26, 2009). On December 8, 2009, Respondent was involved in another incident with a student, E.C., who was a seventh-grade female. Respondent had sent E.C. to a neighboring classroom, connected to his classroom by a vacant office. When E.C. tried to return to Respondent’s classroom through the vacant office to retrieve her things, Respondent stopped her and told her to return to the other classroom. E.C. was determined to get her things and disobeyed Respondent. When she tried to go around him to go back into his classroom, Respondent put his hand on her shoulder in an attempt to stop her. E.C. told him: “Don’t touch me.” She retrieved her things from Respondent’s classroom and then returned to the other classroom where Respondent had sent her. At that point, Respondent called the office for assistance. The District’s DPSE immediately began an investigation. Respondent was suspended from teaching with pay and benefits as of December 9, 2009, pending completion of the investigation. Following the investigation and a predetermination conference, the School District’s superintendent filed a Petition for Termination, alleging that Respondent was guilty of misconduct and other violations in connection with the incident on December 8, 2009. Respondent, represented by counsel, requested an administrative hearing to contest the proposed termination. Beginning March 9, 2010, the terms of Respondent’s suspension were changed to without pay pending resolution of the administrative proceeding. A DOAH evidentiary hearing was held on July 14, 2010. The resulting Recommended Order found Respondent guilty of misconduct and some of the other charged violations. The recommended penalty was suspension without pay from March 9, 2010, through January 1, 2011. The Recommended Order’s findings of facts, conclusions of law, and recommended penalty were adopted in a Lee County School Board Final Order rendered November 2, 2010. Lee County School Board v. Joseph Cofield, Case No. 10-1654 (Fla. DOAH Sept. 24, 2010; Lee Cnty. Sch. Bd. Nov. 2, 2010) (2010 Suspension Order). Detailed findings of fact were made in the 2010 Suspension Order regarding the history of disciplinary action taken against Respondent from 2005 through 2009, which went uncontested by Respondent through the grievance process available to dispute disciplinary action. See 2010 Suspension Order, RO at 3-7. The findings also describe the repeated warnings given to Respondent in the numerous letters of reprimand, which went unheeded; Respondent continued to engage in the same types of inappropriate behavior, despite the discipline and the warnings. Findings were also made in the 2010 Suspension Order regarding Respondent’s positive contributions as a teacher during the same time span as his patterned inappropriate behavior. These included: being honored in 2005 as Wal-Mart Teacher of the Year; being honored by Florida Gulf Coast University as College Reachout Program Coordinator of the Year; participating in a conference in January 2009 to discuss the Troops to Teachers Program; coordinating a computer give-away program in conjunction with a community organization that presented computers to Bonita Spring Middle School; and achieving success in Cadet and College Reachout Programs. See 2010 Suspension Order, RO at 11-12. The 2010 Suspension Order concluded as follows: The School Board did establish that Mr. Cofield placed his hand on a student’s shoulder without the permission of the student. Mr. Cofield has been warned and disciplined in the past for placing his hands on students without the student’s permission. Mr. Cofield chose not to heed those warnings. Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance. The School Board has established that Mr. Cofield’s conduct constitutes misconduct[.] * * * Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action. 2010 Suspension Order, RO at 14-15. Respondent did not appeal the 2010 Suspension Order. Its findings, officially recognized herein, establish the backdrop of Respondent’s significant track record of discipline, and of the repeated warnings given in connection with disciplinary measures, from 2005 through 2009. No contrary evidence was offered. In October 2010, just before the School Board rendered the 2010 Suspension Order, Petitioner issued an Administrative Complaint against Respondent (2010 Complaint), seeking to take disciplinary action against Respondent’s educator’s certificate. The 2010 Complaint set forth Respondent’s “history of discipline related to conduct with students,” listing in summary fashion much of the same disciplinary history detailed in the 2010 Suspension Order. Respondent’s disciplinary history set forth in the 2010 Complaint was as follows: On or about March 2, 2005, Respondent received a Letter of Reprimand from [the] principal related to pushing [a] student. On or about September 27, 2005, Respondent received a Letter of Reprimand from [the] principal resulting from allegations that Respondent put [his] hand into [a] student’s front pocket. On or about September 25, 2006, Respondent received a Letter of Reprimand from [the] principal for yelling at Cadets in a loud and harsh manner. On or about October 9, 2009, Respondent received a Letter of Reprimand from [the] principal for, among other things, Respondent’s confrontational behavior towards [the] principal. On or about October 28, 2009, Respondent received a Letter of Reprimand from [the] principal relating to conduct with students. On or about December 9, 2009, Respondent received a Letter of Suspension from [the] principal related to allegations of [a] physical assault on a student. 2010 Complaint at 1-2 (Pet. Exh. 1). The 2010 Complaint added allegations of other incidents of inappropriate conduct by Respondent during the 2008-2009 school year, including the following: Respondent called students embarrassing names such as “knucklehead” and “fruitcake.” Respondent looked at female students in a manner that made the students feel uncomfortable and self conscious. Respondent threatened students telling them, “I will cut your fingers off,” or “I’ll smash your head into a wall,” or words to that effect. 2010 Complaint at 2 (Pet. Exh. 1). Respondent, represented by counsel, entered into a settlement agreement to resolve the charges in the 2010 Complaint, rather than contest them in an administrative hearing. Respondent signed the agreement on April 28, 2011. Pertinent terms of the settlement agreement were: Respondent neither admits nor denies, but elects not to contest the allegations set forth in Petitioner’s Administrative Complaint, which are incorporated herein by reference. Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certificate file with the Department of Education and a copy of which shall be placed in his personnel file with the employing school district. Respondent agrees that he shall be placed on probation for a period of two (2) employment years. . . . As conditions of probation, Respondent: * * * shall, within the first year of probation, take a 3-credit hour college level course in the area of Classroom Management. . . . shall violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006 [transferred to rule 10A-1.081 in January 2013; see endnote 2]; and shall satisfactorily perform his duties in a competent, professional manner. * * * In the event Respondent fails to comply with each condition set forth herein, he agrees that the Petitioner shall be authorized to file an Administrative Complaint based upon the violation of the terms of this Settlement Agreement. Settlement Agreement at 1-2 (Pet. Exh. 1). By Final Order rendered on August 9, 2011, attaching and incorporating the 2010 Complaint and settlement agreement, the EPC accepted the settlement agreement and ordered Respondent to comply with its terms. Respondent did not appeal. Respondent was on probation, and subject to the specific probation conditions imposed by the EPC Final Order, for the 2011-2012 and 2012-2013 school years. Meanwhile, Respondent completed the term of his suspension from teaching without pay imposed by the School Board’s 2010 Suspension Order on January 1, 2011; he was allowed to return to work on January 3, 2011. Respondent was not asked to return to teach at his former school, Bonita Springs Middle School. Instead, he was offered a teaching position at the Alternative Learning Center (ALC). The ALC principal, Ken Burns, was told to make a spot for Respondent to teach there, and he did. Respondent accepted the teaching position at ALC. He taught eighth grade social studies. ALC is an alternative school. Students are sent to ALC because they are having problems at other schools. Principal Burns describes the ALC students as kids who made bad decisions, but who are not bad kids. These students can present challenges for teachers and administrators. In classrooms, sometimes these students do not act properly. They can be disruptive. The teachers are responsible for managing their classrooms properly, in accordance with standards set by Florida law and regulations, and School District policies. Principal Burns described some of the methods used at ALC to deal with problems in the classroom. One tool in place is called Team Time Out. Specific teachers are scheduled to be in charge of Team Time Out for a period of time. If a student is getting unruly in a classroom, the teacher can send the student to the designated teacher in charge of Team Time Out. The student is allowed to cool down before returning to class. Another tool used is a regular Time-Out Room. If a student is disrupting a class, the teacher might send the student to the Time-Out Room, where the student can work on assignments. Regardless of the student problem being confronted, each teacher is expected to abide by the code of conduct established for the education profession. Rather than violate those conduct standards, if the teacher cannot otherwise handle a student problem, the teacher is expected to call administration or security for assistance. On November 30, 2012, while on his EPC-imposed probation, Respondent received a letter of warning, which is a form of disciplinary action, from the ALC principal. As described in the warning letter, a student reported that Respondent pushed the student out the door during a fire drill, and that the push nearly caused the student to fall. The incident described in the letter of warning is similar to the long list of prior incidents for which Respondent was disciplined and about which Respondent was repeatedly warned, including the incident for which Respondent had recently served a suspension without pay for nearly ten months. The November 30, 2012, letter of warning ended with a yet another reminder “to assist in correcting this conduct,” providing as follows: “From this point forward, please remember at no point should a student be physically touched. If you are having an issue with a student please notify the administration or security for immediate assistance.” Very shortly after that incident, the ALC principal received other complaints about Respondent’s behavior with students and his classroom temperament. The complaints came not just from students, but also from a paraprofessional (teacher’s aide) who was concerned about Respondent’s behavior that she had observed when she was in his classroom. The ALC principal consulted with the School District’s DPSE, collected statements from the paraprofessional and students, and passed on the information to the DPSE. By letter dated January 11, 2013, Respondent was informed that the DPSE was conducting an investigation into allegations of misconduct. Because the allegations involved issues of student safety, the notification letter informed Respondent that he was suspended from teaching with pay during the investigation. Andrew Brown, then-investigator for the DPSE, conducted the investigation of alleged incidents involving Respondent in December 2012 and January 2013, and prepared an investigative report. The complaints that were investigated were summarized in the report as follows: On or about December 20, 2012 (just before Winter Break), Mr. Cofield allegedly slammed a student’s fingers between the student’s desk and a binder the student was holding. In a separate incident [on] December 19, 2012, Mr. Cofield allegedly threatened a student by grabbing and holding a keyboard in a threatening manner. He allegedly slammed a door behind the same student as the student was leaving the room, making contact with the student’s arm. In a third incident [on] 1/8/12 [sic: 2013], Mr. Cofield allegedly embarrassed students by asking each one to sit separately on a stool at the front of the room and answer the question, “Do you have a teacher’s license?” before sending the same students out of the class. The investigative report noted that Respondent was “on probation” with the EPC “for similar allegations and conduct.” A predetermination conference was held on January 30, 2013, to allow Respondent to respond to the investigation findings and add any information he would want considered. Respondent was represented by union counsel at that conference. By letter dated February 5, 2013, Respondent was informed that the School District found probable cause for disciplinary action based on the allegations of misconduct investigated, and would be recommending termination of his employment.7/ As was done in 2009, the terms of Respondent’s suspension were changed to without pay, as of February 6, 2013. Before the School District could proceed with a Petition for Termination, Respondent submitted a letter of resignation on March 12, 2013. Respondent has disputed Petitioner’s contention that the resignation was in lieu of termination. When Respondent was deposed, he testified that he wrote his resignation letter to explain that this was a stressful situation for him. However, the letter makes no mention of a stressful situation. It simply reports that Respondent was taking the time for pursuit of higher education, to complete a master of arts degree and then seek a doctorate degree, and that Respondent had concluded: “I feel that it is time to resign in my career as a classroom teacher. I will peruse other opportunities that will be open to me as a result of obtaining my new graduate education.” Respondent testified that he did not think he had already been suspended from teaching when he resigned, and he thought he was still being paid. Contrary to Respondent’s recollection, he had not been teaching for nearly two months, having been suspended on January 14, 2013. He resigned six weeks after being confronted with the details of the DPSE’s investigation in a predetermination conference, and five weeks after he received a letter informing him that probable cause had been found and the recommendation would be made to terminate his employment. He had not been paid for five weeks when he submitted his letter of resignation. A fair inference from the timing is that he chose to resign when he did to avoid being terminated from employment and/or having to contest the charges in another administrative hearing. Pursuant to section 1012.796(1)(d), Florida Statutes, even though Respondent had resigned, the School District was required to report the alleged misconduct to the Department of Education, which then conducted its own investigation. Petitioner issued an Administrative Complaint against Respondent on March 9, 2015, and an Amended Administrative Complaint on December 3, 2015. The specific incidents alleged in both versions of the complaint, are as follows: On or about December 19, 2012, Respondent grabbed a keyboard from a computer being used by R.T., a fourteen year old, male student. Respondent held the keyboard over the head while glaring at R.T. and in a manner that made the student believe Respondent was about to hit him with the keyboard. On or about December 20, 2012, Respondent became angered when C.G., a thirteen year old, male student, tapped on his binder repeatedly. Respondent slammed C.G.’s binder with force, bringing the binder down on C.G.’s fingers causing pain to C.G. Respondent then threw C.G.’s binder in the trash. On or about January 7, 2013, Respondent called students in his class to the front of the room and individually asked them, in front of the class, if they had a license to teach. Respondent disputed the first allegation of a keyboard incident; Respondent admitted parts of the second allegation of a binder incident, while denying part of the allegation; and Respondent admitted the third allegation. No non-hearsay evidence was presented to prove the allegations regarding a computer keyboard incident on December 19, 2012. The student, R.T., did not testify; no other students or other eyewitnesses testified; and Respondent denied the allegations. R.T. provided a written statement about the incident, which is in evidence, but that statement is hearsay and cannot be used as the sole basis for a finding of fact. Petitioner did not argue that R.T.’s statement would be admissible over objection in a civil action, and the statement does not supplement or explain any non-hearsay evidence. Respondent admitted parts of the allegations regarding a binder incident on December 20, 2012. Respondent acknowledged that a student in his classroom, C.G., was tapping on, flipping, or otherwise playing with a notebook or binder when the class was supposed to be taking a test. Respondent admitted that he took the binder out of the student’s hands, and threw the binder across the room into the garbage can. As he testified: A: If there is a kid sitting in my classroom after I’ve given instructions of what to do and they still banging on a desk, yes, I have the right to go remove this noise away from these students that are trying to get ahead. If there is something wrong with that I don’t need to be in a classroom. Q: And throw this in the trash can? A: Sir, when I took -- as my statement says, I took the binder away from the child and I threw it across the classroom. If it went in the garbage can, sir, it went in the garbage can. I don’t -- I didn’t pay attention to where it went at. I stopped the negative behavior going on in my classroom. Q: So now your testimony is you took it and threw it across the classroom? A: Sir, I took the instrument away from the student and it went in the garbage can. Q: . . . [T]ell us what you told them at your predetermination conference. Didn’t you say you put it in the garbage? A: No, I put the binder in the garbage, that’s what it states. But we clearly know that that’s not . . . [t]here’s nothing false about that. What it means is the binder left the student’s desk and wound up in the garbage can. Q: It didn’t wind up there, you put it there, right? A: Yes sir, I put it there. (Tr. 131-132). In his deposition testimony, Respondent more clearly acknowledged that he intended to throw the student’s binder in the garbage can; he did not equivocate as he did at hearing: Q: Then you didn’t walk over to the trash can and, in a Frisbee-type manner, throw the binder into the trash can? A: Oh, I most definitely put it in the garbage can, sir. Q: You did? A: Yes sir, I did. Q: All right. Why did you do that? A: Because the student was disrupting – or, I mean, was interrupting a test environment. Q: Okay. A: and that – and that instrument was the thing that was causing all of that disturbment [sic]. (Pet. Exh. 11 at 39-40). The facts regarding this binder incident that were admitted by Respondent were supplemented and explained by a number of written witness statements by students who were present, including C.G. These statements confirm that Respondent got angry because of C.G.’s toying with his binder, and that Respondent snatched the binder out of C.G.’s hands, and then either went across the room and then tossed it Frisbee-style into the garbage can or tossed the binder Frisbee-style across the room where it landed in the garbage can. While Respondent may have had good reason to stop C.G. from disrupting the classroom, the manner in which he went about it was inappropriate and contrary to the repeated warnings he had been given over the prior seven years by no less than four different principals (including, most recently, the ALC principal) to avoid any physical contact with students. See 2010 Suspension Order (detailing past disciplinary warnings and identifying principals issuing them). Respondent did not admit to having smashed the binder down on C.G.’s hand before snatching it away from C.G., and there was no independent non-hearsay evidence to prove that aspect of the allegation. Nonetheless, Respondent’s admissions establish that he took C.G.’s binder away while C.G. was tapping on it, flipping the cover, or otherwise playing with it, as the means Respondent chose to stop C.G. from playing with his binder. The only reasonable inference is that Respondent forcibly removed the binder while at least one of C.G.’s hands was on, in, or under the binder--an inappropriate physical contact. Respondent’s explanation that he did this because the binder was the instrument being used to cause disruption is insufficient to justify the inappropriate physical contact that had to occur to remove the binder from C.G. while he was playing with it. Respondent’s additional acts of tossing C.G.’s binder like it was a Frisbee and throwing the binder in the garbage can were inappropriate responses that went well beyond the claimed objective of stopping the disturbance. These actions can only be explained as displays of anger, presumably because C.G. did not listen to Respondent’s instructions to stop playing with the binder. If Respondent were genuinely concerned only with stopping the disruptive behavior, he would not have reacted by causing an even greater disturbance by tossing the binder like a Frisbee into the garbage can. Instead, he would have, and should have, dealt appropriately with C.G. Moreover, it was irresponsible for Respondent to throw the binder in the garbage can, after he had wrested the binder away from C.G. The binder could have contained important schoolwork for Respondent’s class or another class. Despite being on probation for a string of similar incidents, despite having been suspended from teaching for nearly ten months for a similar incident, and despite having just received a letter of warning three weeks earlier, Respondent failed to heed the repeated warnings that if he had an issue with a student, he should contact security or administration for immediate assistance rather than inappropriately attempting to “control” the situation by making contact with the student. The evidence was clear and convincing that in this binder incident, Respondent did not act with the calm, professional demeanor expected of a teacher who is able to deal appropriately with a student disrupting the classroom by playing with a binder. Instead, Respondent acted inappropriately with a temper that made an all-too-regular appearance in the classroom. The ALC principal described Respondent as having a temper that would turn on and off like a switch. His testimony was credible and is credited. Ms. Lewis, the paraprofessional who spent time working in Respondent’s classroom during the 2012-2013 school year, observed the same thing: Respondent had a temper that greatly affected his classroom conduct. Set off by minor incidents of students talking or not listening, Respondent would get angry, yell at the students, use profanity (not the “f” word, but somewhat milder words),8/ and act in volatile ways, such as tossing text books so that they would slide on a table and stop just before they hit students. Respondent’s unpredictable outbursts caused concern for the students’ safety; sometimes when Respondent got angry, he would clench and shake his fists, trembling as if he was about to strike out. Respondent’s classroom temperament was unlike anything the paraprofessional observed from any other teacher in the other ALC classrooms where she also worked. While Respondent’s temper and classroom temperament, as described by the ALC principal and paraprofessional, were not set forth as the subjects of separate charges in the Amended Administrative Complaint, they tend to support the findings above that Respondent’s admitted conduct on December 20, 2012, was inappropriate, just as they undermine Respondent’s claimed justification. Respondent’s temper and lack of control also were on display on several occasions during the course of the hearing, adding even more credence to the findings. He raised his voice and got agitated while giving his sworn statement. He also accused the undersigned of having “belittled” him, without explanation as to why he said that. (Tr. 105). Respondent also admitted the third allegation describing his classroom conduct on January 7, 2013: Q: Did you do that on January -- on or about January 7, 2013, did you bring students up to the front of the class and ask them, “Do you have a license to teach?” A: I most – yes I did, sir. Q: All right. Good. So that, you admit? A: I clearly admit that, yes. Q: All right, good. A: And I –- and I will challenge anybody that -- that's in my classroom that’s trying to disrupt the class that don’t have a teaching license. (Pet. Exh. 11, p. 46). Respondent acknowledged to having engaged in that conduct on other occasions--indeed, as a matter of course: “I can guarantee you that I have asked all of my students over many periods of time do they have a license, because I’m the only person in that classroom with a teacher’s license.” (Pet. Exh. 11, p. 45). The paraprofessional working in Respondent’s classroom was an eyewitness to this conduct, which she described as very demeaning and embarrassing for the students. Respondent’s admissions and the paraprofessional’s eyewitness observations are corroborated by numerous written statements by students subjected to this conduct. Respondent sought to justify his conduct as legitimate teaching strategy. As he tried to explain it: It’s effective classroom management. If you have a bunch of students that do not have the ability to stop stopping their behavior, you have to ask them before you take them away from the classroom do they know what they’re doing. If the answer is yes, I know what I’m doing, then you need to send them out. If the person says no, I have no idea what I’m doing you need to work with that student until that student understands what is wrong with that behavior that you want to correct. (Tr. 129-130). Respondent’s explanation for his conduct does not square with his actual conduct. He is not being accused of asking unruly students whether they know what they are doing and then working with those students to correct their misbehavior. Instead, he is accused of demeaning these young teenaged students by isolating them one at a time at the front of the room, and requiring them to face their peers and announce that they are not licensed to teach, so that Respondent can remind them that he is superior. This has nothing to do with addressing unruly or disruptive behavior, questioning that behavior, or attempting to correct that behavior. Instead, Respondent dealt with disruptive students by belittling them, embarrassing them, and reminding them that he is better than them. As the ALC principal confirmed, there is no reasonable explanation for Respondent’s conduct as any form of legitimate teaching strategy. Instead, this is inappropriate conduct for a teacher. Respondent offered little by way of specific evidence in his defense. Instead, at times he claimed to not recall anything about his disciplinary track record, or about the incidents alleged in the Amended Administrative Complaint.9/ He repeatedly challenged Petitioner to produce video evidence of the incidents, but never proved that any video evidence existed. If there had been video evidence, it would have been in the possession of the School District, but no video is identified in the investigative report as would be expected if it existed. Respondent could have taken steps to compel the production of any such evidence by the School District, but he did not. Respondent’s other defense was to attempt to challenge the credibility of Petitioner’s witnesses. These efforts were ineffective. Respondent made general sweeping statements that he was “shocked” by the testimony of Petitioner’s witnesses, which he repeatedly characterized as filled with lies, without proof of that characterization. Other than those broad generalizations, no specifics came to light as to why the testimony of Petitioner’s witnesses should not be believed. Respondent argued in his opening statement that the ALC principal “has seemed to have an axe to grind and has been on the greatest witch hunt to railroad a great educator.” (Tr. 17). That charge was wholly unsubstantiated. Instead, the ALC principal recognized the same pattern of behavior evident since 2005 when Respondent was first required to take anger management training by a former Bonita Springs Middle School principal. Respondent proclaimed himself a great leader while offering his view that with one exception, none of the principals he worked for in Lee County were good leaders. It is worth noting that according to the 2010 Suspension Order, the “one great principal” Respondent identified (Tr. 113) was the principal who had Respondent undergo anger management training in early 2005, and who issued Respondent’s first letter of reprimand for pushing a student. To the extent Respondent attempted to blame his disciplinary history and the allegations he is now facing on his principals, rather than excusing or explaining the conduct for which he was disciplined and for which he is subject to discipline in this proceeding, the impression given is that Respondent has had difficulty accepting the subordinate role of teacher vis-à-vis principal. Indeed, Respondent admitted that he “did tell the principal the one that write down these false things against me, I could do your job just as well as you can do it. And maybe that offend some people. . . .” (Tr. 115). Respondent also attempted to discount the significance of the EPC Final Order by alluding to various medical problems he was experiencing that caused him to enter into a settlement agreement, even though he claimed the charges were not true. Respondent offered no evidence to substantiate his claims, but stated generally that he “had just got over having a kidney removed” and that he “had prostate cancer.” He also said that he had taken his wife’s money to fight the allegations, and agreed to the settlement so he could get back to work. (Tr. 111). Notwithstanding Respondent’s testimony, the EPC Final Order cannot be collaterally attacked in this proceeding. Respondent accepted the terms of that Final Order, and knew full well that he was required to comply with the probation conditions or face more discipline for violating the terms of his probation. Respondent also claimed that he was set up for failure by being assigned to ALC, which was more than one hour away from his home instead of the ten-minute commute he enjoyed when teaching at the school where he earned a lengthy suspension, after a string of six letters of reprimand. Respondent did not contest the assignment, but accepted the teaching position at ALC. Respondent’s school assignment may have been a matter he could have raised in a grievance proceeding, but it is not a matter that explains his inappropriate conduct while teaching there, especially knowing he was on probation. Finally, in a seeming admission that his temper was erratic and his behavior volatile while he was teaching at ALC, Respondent testified that he was undergoing radiation treatment for prostate cancer, and that anybody undergoing that treatment “would have such mood swings some times.” Yet in the next breath, he said: “But it never affected my effectiveness in my classroom.” (Tr. 112). In his predetermination conference in which Respondent was informed of the investigation findings and allowed to respond to the allegations of misconduct, Respondent did not mention that he had been undergoing treatment that may have affected his behavior or his classroom conduct. If this was a legitimate reason that might explain or excuse, even in part, Respondent’s conduct in December 2012 and January 2013 that was the subject of the School District’s investigation, surely Respondent would have shared information about his treatment and how it might have affected him in a conference to determine if there was probable cause to proceed to terminate his employment. Without more to substantiate the relevance of any medical conditions, treatment, or other external factors alluded to by Respondent, including specifics as to the timing of such matters, they cannot excuse or explain Respondent’s improper conduct as found above. As in the administrative hearing that resulted in the 2010 Suspension Order, Respondent offered evidence of his positive contributions as a teacher, as mitigating evidence to consider in imposing discipline. However, most of Respondent’s evidence is old, pre-dating Respondent’s suspension, and in fact, duplicating the evidence of Respondent’s contributions, honors, and achievements considered and addressed in the 2010 Suspension Order. Respondent’s contributions and achievements in 2009 and earlier years were expressly credited as mitigating against a harsher result in the 2010 Suspension Order for his misconduct committed during the same timeframe as the contributions. Having already enjoyed the mitigating benefit of his pre-2010 achievements, honors, and contributions to lessen the consequences of his pre-2010 misconduct, Respondent’s older achievements are not considered again in this proceeding in mitigation of the appropriate penalty for Respondent’s post- suspension improper conduct. Respondent presented evidence that after he returned to teaching when his suspension was completed, he continued his participation in the computer give-away program, working with a community computer club sponsoring free laptop computers for selected students who wrote an essay explaining how they would benefit from a laptop. Respondent provided one such essay submitted by an ALC student. Respondent’s continued involvement in the computer give-away program while at ALC was a positive contribution for at least one ALC student who participated. The other post-suspension evidence offered by Respondent shows that he is bettering himself by pursuing higher education, obtaining an additional degree and a certificate, as he stated he would do in his March 2013 resignation letter when he stopped teaching. These are positive contributions by Respondent, but cannot be considered contributions by Respondent as an educator to mitigate the penalty imposed for Respondent’s improper conduct as an educator. Respondent has not worked as a teacher since he submitted his resignation letter to the School District in March 2013, but he has been pursuing the higher education described in that letter. It is unclear whether Respondent would otherwise be seeking work as a classroom teacher pursuant to his educator’s certificate. Petitioner’s witness for the School District testified that he could not imagine that the School District would consider hiring Respondent back to teach there. The ALC principal echoed that sentiment. The principal would be concerned because it is his job to make sure the school is safe for all students. He would not want Respondent back in a teaching role at his school because of his track record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Finding Respondent guilty of violating section 1012.795(1)(j) and (1)(l), Florida Statutes, and Florida Administrative Code Rule 10A-1.081(3)(a), (3)(e), and (5)(p); Finding Respondent not guilty of violating section 1012.795(1)(g); and Revoking Respondent’s educator’s certificate no. 777352 for a period of three years. DONE AND ENTERED this 1st day of August, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2016.
