Findings Of Fact From September, 1990, and at all times material to this case, Karen E. Maroon (Respondent) was employed on an annual contract as a bus driver for the Lee County School District. "Bus referrals" are the method used by bus drivers to report student misconduct to appropriate school authorities. A referral consists of a multi- part form completed by the bus driver which identifies the name of the student alleged to have committed the infractions and a description of the offending behavior. The form is submitted to the school official responsible for addressing bused student misbehavior. The official reviews the report and completes the form by setting forth the action taken in response to the referral. At Bonita Springs Middle School, Assistant Principal Helen Hicks-Wiley is responsible for bus referrals. On March 3, 1993, the Respondent wrote several bus referrals alleging that three female students had acted improperly on the Respondent's bus. She did not turn them in at that time. The next day, the Respondent was absent from work. On the morning of March 5, 1993, the Respondent turned the referrals into the Bonita Springs school office. Ms. Hicks-Wiley reviewed the referrals and wrote "see me" on them. On the afternoon of March 5, 1993, the Respondent arrived at the Bonita Springs Middle School prior to 3:30 p.m. Upon her arrival, another bus driver delivered the Respondent's referral slips on which Ms. Hicks-Wiley had written "see me." The Respondent began attempting to locate Ms. Hicks-Wiley. Bonita Springs Middle School students are released from class in two sections. Bus students are released first. After buses have departed, the remaining students are released. At approximately 3:30 p.m., the Respondent located the school's principal and inquired of Ms. Hicks-Wiley location. He stated he did not know where she was. During that very short conversation, the Respondent was in a hurry and somewhat angry. At that time, the 3:30 bell signaling the first release of students was sounded. At 3:30 p.m., Ms. Hicks-Wiley was in front of the school at the site of the bus transport staging area. It was her usual responsibility to monitor the area while the students boarded the buses. At the 3:30 p.m. first release bell, approximately 500 students began exiting the building on their way to their buses. At approximately 3:31 p.m., the school fire alarm sounded. Smoke, from what was subsequently determined to be an overheated water cooler, was visible in one hallway. As the fire alarm sounded, the bus-riding students, already in the hallways and exiting the building, were joined by the evacuation of approximately 200 additional students. As the students became excited, the fire alarm compounded the typical confusion expected at the close of the middle school day. The students were more noisy than usual. The fire alarm continued to ring. Some of the buses, engines running, were waiting to depart. At about 3:32 p.m., the Respondent approached Ms. Hicks-Wiley in front of the school and inquired as to the "see me" notation on the referrals. Because Ms. Hicks-Wiley was otherwise occupied with the evacuation of students from the facility, she declined to discuss the referrals at that time and directed the Respondent to contact her on Monday. The Respondent was apparently dissatisfied with Ms. Hicks-Wiley's response and attempted to continue the conversation. Ms. Hicks-Wiley repeatedly declined to discuss the matter in front of the milling children and directed the Respondent to contact her on Monday. Ms. Hicks-Wiley's manner in declining to discuss the matter at that time was to use the "broken record method" during which she simply repeated again and again her direction to contact her on Monday. Ms. Hicks-Wiley attempted to walk past the Respondent so as to continue her supervision of the bus loading area. As Ms. Hicks-Wiley walked, the Respondent placed her hand on Ms. Hicks-Wiley's arm. The evidence is insufficient to establish that Ms. Maroon blocked Ms. Hicks-Wiley's movements. Ms. Hicks-Wiley lost her temper, throwing her hands into the air and stating "Don't touch me. Don't ever touch me." Ms. Hicks-Wiley's fingernails are exceptionally long. The Respondent, having lost her temper and apparently feeling threatened by the length of Ms. Hicks-Wiley's nails, threw her hands into the air and stated "Don't touch me. If you touch me, bitch, I will kick your ass." Beyond the Respondent's touching of Ms. Hicks-Wiley's arm, there is no evidence that either woman touched the other. Ms. Hicks-Wiley then directed the Respondent to get on her bus and complete her job duties. Ms. Hicks-Wiley, who was equipped with a portable transmitter radio also contacted the school's Resource Officer. He arrived at the site but was not required to intervene. The Respondent, upset by the situation, returned to her bus, and departed from the school with her load of students. The Lee County Superintendent of Schools directed an investigation of the incident. On March 10, 1993, a conference was held at which time the Respondent was provided an opportunity to respond to the allegations. She denied the allegations. On March 10, 1993, the Respondent was suspended with pay from her employment as a bus driver.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Karen E. Maroon. DONE and RECOMMENDED this 17th day of February, 1994, 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 17th day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2937 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to how the Principal "felt," irrelevant. 8. Rejected as to location of parties during incident, not supported by greater weight of credible and persuasive evidence. Rejected, irrelevant. Rejected as to the extent of the explanation as to the reason the discussion would have to be postponed, irrelevant. It would have been obvious as to the reason. 14-15, 17, 19. Rejected, subordinate. 20-21. Rejected, not supported by greater weight of credible and persuasive evidence. 22. Rejected, irrelevant. 25. Rejected, not supported by greater weight of credible and persuasive evidence. 27. Rejected, subordinate. 28, 33-34. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-7. Rejected, unnecessary. The referral was addressed on the day it was turned in to the school office. Unusual circumstances at around 3:30 p.m. on that day prevented the appropriate school official from discussing the matter with the Respondent. Rejected, unnecessary. Rejected, as to the alarm not being cause for concern, contrary to the greater weight of credible and persuasive evidence. 11-13. Rejected, restatement of testimony is not appropriate finding of fact. 14. Rejected, subordinate. 15-21. Rejected, restatement of testimony is not appropriate finding of fact, contrary to the greater weight of credible and persuasive evidence. 23-26. Rejected, unnecessary. Rejected, contrary to greater weight of credible and persuasive evidence which fails to establish the precise location of parties during incident. Rejected, irrelevant. Rejected, testimony of other bus drivers is not found to be credible or persuasive except as otherwise set forth herein. 30-31. Rejected, contrary to the greater weight of credible and persuasive evidence. COPIES FURNISHED: Bobbie D'Alessandro, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 32902
Findings Of Fact Respondent John T. Hagler held Florida teacher's certificate No. 241870 covering the areas of biology, English and general science, valid through June 30, 1991. He worked as a substitute teacher for the Santa Rosa County School Board during the 1989-90 and 1990-91 school years. Afflicted with Downs syndrome, respondent's thirteen-year-old foster son, E. C., also had pronounced behavioral problems. Slender but not weak, he made sexual advances toward teachers and others, overturned desks, destroyed property, emerged from the school bathroom naked, lay down on a table and refused to move, threw things, engaged in self abuse, and was generally aggressive toward others, both verbally and physically, according to Catherine Irwin, a behavior specialist who saw him weekly. It was more than E. C.'s mother, an alcoholic, could cope with on her own, so she voluntarily relinquished custody of him. Under contract to the Department of Health and Rehabilitative Services (HRS), Lakeview Center, Inc. in Pensacola trained respondent John Thomas Hagler and his wife in crisis prevention intervention and otherwise helped them secure licenses as foster parents, before HRS placed E. C. in their care, in March of 1990. According to the behavior specialist who monitored E. C. during his time with the Haglers, his undesirable behavior decreased. She reported seeing "laughing moments, tender moments and structure" in the foster home Mr. and Mrs. Hagler provided for E. C. Respondent and his wife Kathleen "Kitty" Hagler deal in antique glass, selling "depression ware" and other glass objects at flea markets. They took E. C. with them on several of these occasions, including on Saturday, July 7, 1990, when they went to the T & W Flea Market in Pensacola and set up their display at Table 210, under a big oak tree. Irene Rathbone, who left before all the excitement, saw E. C. at the flea market that day sitting at a TV table calmly eating a hot dog. Later E. C. had moved to the front seat of the Haglers' Ford pickup, driver's side. Without warning, he lunged for Mrs. Hagler, grabbing her crotch and a breast, or so she told Mr. Hagler afterwards. By the time Mr. Hagler, who heard her scream and came running to her assistance, reached her, she had pushed E. C. to the ground and was fending him off with her leg. E. C. was seated on the ground with his back against the truck, holding on to Mrs. Hagler's leg. Respondent leaned down, slipped his arms under E. C.'s from behind, grabbed his own wrist, lifted and dragged E. C. into an unshaded clearing a few feet away, and told him to stay there. Concerned citizen(s) notified the Escambia County Sheriff's office. Deputies rescued E. C. from his "time out" after about 25 minutes, and arrested Mr. and Mrs. Hagler. What they mistook for blood around Eric's mouth turned out to be cherry-flavored Kool-Aid (of which E. C. had drunk about a half gallon that day.) At the time of the arrest, the temperature was about 95 or 96 degrees F., but E. C. was not dehydrated or sunburnt. In the Circuit Court for Escambia County, an unsigned, amended information was filed alleging eight counts against both Mr. and Mrs. Hagler, who retained Gary Porch, Esquire, to assist in their defense. As the trial approached, the State offered to drop the charges it had laid against Mrs. Hagler. At the hearing in the present case, Mr. Porch testified that he advised Mr. Hagler his chances of acquittal were better than 50-50. Even though the State did not condition its offer not to prosecute Mrs. Hagler on Mr. Hagler's cooperation, Mr. Hagler felt the prosecutor might go forward against her if he did not cooperate, so he pleaded nolo contendere to count four, which alleges that he deprived E. C. "of necessary food or shelter or inflicted physical injury to E. C. by failing to provide water or shade to the child during excessive summer heat, in violation of Section 827.04(2), Florida Statutes." On April 17, 1990, Judge Collier adjudicated John Thomas Hagler guilty of count four, "negligent child abuse," Petitioner's Exhibit No. 1, and placed him on six months' probation, "on condition [that he] pay $75.00 court cost[s], and have no contact with similar type children, or be a foster parent." Id. Escambia County school officials first learned of events at the flea market from the Pensacola News Journal which published an account on July 9, 1990. Dr. Charles Boyd removed his name from the roster of substitute school teachers. The Escambia County School Board will not employ teachers convicted criminally of child abuse.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's teacher's certificate for five days. DONE and ENTERED this 16th day of September, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 16th day of September, 1992. COPIES FURNISHED: Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Margaret E. O'Sullivan 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 John T. Hagler 101 San Carlos Avenue Gulf Breeze, FL 32561
The Issue The basic issue in this case is whether the Respondent, Theresa Callahan, should be dismissed as a member of the instructional staff of the Palm Beach County School Board. Respondent's dismissal has been recommended by the Petitioner, Thomas J. Mills, Superintendent of Schools, on the basis of allegations set forth in an Amended Petition For Dismissal in which it is alleged that the Respondent was incompetent and guilty of misconduct in office, willful neglect of duty, and gross insubordination, and subject to dismissal pursuant to Section 231.36, Florida Statutes. Petitioner based these charges on allegations of the Respondent's repeated failure to perform duties prescribed by law as requested by her supervisor(s), her repeated failure to communicate and relate to her students in the classroom to such an extent that they were deprived of a minimal educational experience, her continued verbal abuse of her co-workers, her continued denial of basic rights to her ESOL students and her discriminatory application of discipline to Haitian students. Numerous sub- issues are set forth at pages 15 through 18 of the Parties' Joint Pre-hearing Stipulation.
Findings Of Fact Based on the parties' stipulations and on the credible evidence received at the hearing, the following facts are found: Stipulated facts The Respondent has been employed as a classroom teacher with the Palm Beach County School Board since August 21, 1967. Respondent received her continuing contract of employment in November 1971. The Respondent was initially employed by the District as a Television Studio Teacher from August 1967 until June 1, 1970. In October 1970, the Respondent served in the capacity of an Elementary Education Teacher with the District. She held that position until June 1973. From August 1973 through November 1976, the Respondent worked as a Resource Teacher within the School Board's Bilingual Project. In August 1976, she was assigned to Pine Grove Elementary School where she worked as a bilingual teacher until November 1978. Effective December 1, 1978, through the present, the Respondent worked as a Bilingual Education Teacher at Atlantic High School and Boca Raton High School. Respondent is currently assigned and is fully certified to teach ESOL (Bilingual Education) to students in grades seven through twelve at Atlantic High School and Boca Raton High School. Respondent's present principals, Ms. Carole J. Shetler, Atlantic High School, and Dr. Norman Shearin, Boca Raton High School, are both charged with assessing the performance of duties and responsibilities of all employees at their schools, including the Respondent. Respondent acknowledges the receipt in January 1986 from the principal of Atlantic High School of a mid-year evaluation of her performance as a classroom teacher identifying that she needed to improve her performance in the following areas: Planning for Instruction; Communication, Verbal and Non-Verbal; Effective Working Relationship with Associates; Accepts Constructive Suggestions; and Submits Reports on Time. However, Respondent disagreed with the content of that evaluation. Respondent also received a mid-year evaluation from the principal at Boca Raton High School in which she was rated "Very Good" in five areas, "Satisfactory" in eleven areas and "Improvement Needed" in only one area which pertained solely to submitting timely reports. In the Respondent's annual evaluation for the 1985-1986 school year, the principal at Atlantic High School noted that she needed to improve her performance in the areas of: Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; and Effective Working Relationship with Associates. The areas titled "Planning for Instruction" and "Accepts Constructive Suggestions" had gone from improvement needed in the 1986 mid-year evaluation to unsatisfactory in the 1986 annual evaluation. Respondent acknowledged agreement with the content of that evaluation. In February 1987, the Respondent received another mid-year evaluation from the principal of Atlantic High School. The areas noted for improvement needed were: Planning for Instruction; Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Climate; Effective Working Relationship with Asso-ciates; and Organizes for Efficient Use of Resources. The area titled "Accepts Constructive Suggestions" was still noted as unsatisfactory. However, Respondent disagreed with the content of that evaluation which she so noted thereon. She also forwarded the District and the Atlantic High School Principal her letter dated March 12, 1987, stating her disagreement with the mid-year evaluation. In the recommendation section of the 1987 mid-year evaluation, the principal of Atlantic High School gave the Respondent four directives: Comply with request to take Assertive Discipline Training; Develop an Assertive Discipline Plan; Work in a positive and professional way with associates; and Complete appropriate lesson plans and utilize time for instruction. In May of 1987, the principal of Boca Raton High School, the Respondent's other work site, completed an annual evaluation of the Respondent's performance. The areas noted as improvement needed were: Planning for Instruction; and Organizes for Efficient use of Resources. The area titled "Submits Reports on time" was noted as unsatisfactory. The two areas noted as problem areas (Planning for Instruction and Organizes for Efficient use of Resources) were also addressed in the Respondent's 1987 mid- year evaluation by the principal of Atlantic High School. However, also noted in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was also rated as "Outstanding" in two areas, "Very Good" in four areas and "Satisfactory" in eight areas. The Respondent's annual evaluation from the principal of Atlantic High School reflects that the Respondent failed to improve the deficiencies noted in her 1987 mid-year evaluation. The Respondent still had seven areas which were classified as improvement needed. Those areas were: Management of Student Conduct; Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; Effective Working Relationship with Asso-ciates; Accepts Constructive Suggestions; and Organizes for Efficient Use of Resources. However, as reflected in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was rated as "Outstanding" in two areas (Adheres to Defined Duty Days and Is Punctual) and "Very Good" in four areas (Management of Student Conduct, Communication, Verbal and Non-Verbal, Effective Working Relationship With Parents, and, Accepts Constructive Suggestions). The Respondent received an overall "Satisfactory" annual evaluation in May 1988 from the principal/assistant principal at Atlantic High School, although she did receive three areas of concern titled: Management of Student Conduct; Instructional Organization and Development; and Establishes an Appropriate Classroom Climate. In May 1988, Respondent also received her annual evaluation from the principal/assistant principal at Boca Raton High School. Every area was marked as "Acceptable" (satisfactory) and Respondent was given two commendations ("Accepting atmosphere - students from many cultures appear relatively comfortable" and "Practical application of English to the business world and their world"). In the Respondent's January 1989 mid-year evaluation by the principal/assistant principal at both Atlantic High School and Boca Raton High School, five areas of concern were reflected. They were: Management of Student Conduct; Instructional Organization and Develop-ment; Establishes an Appropriate Classroom Climate; Demonstrates Self Control; and Demonstrates Effective Working Relationship with Co-Workers. At or about that same time, the principal of Atlantic High School also tendered Respondent with a deficiency notice dated January 24, 1989, stating that Respondent failed to use her assertive discipline plan, delayed her lesson a significant part of the class period, failed to use appropriate language when she communicated with her students and her Aide, and refused to help a student who said they did not understand. About that same time, Respondent was also placed on a Professional Development Plan ("PDP") by both school administrations with respect to each identified area of concern, instructed to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. Respondent disagreed with the content of the Boca Raton High School evaluations/PDP but nonetheless did comply with and satisfactorily complete the specified instructional strategies set forth therein timely within the 30-day timeline schedule. The Respondent remained on both mid-year PDP's until the end of the school year. In June 1989 the principal at Atlantic High School tendered Respondent her annual evaluation also identifying the previous five areas of concern. In May 1989 the principal at Boca Raton High School tendered Respondent her annual evaluation identifying the previous five areas of concern as well as an additional one titled "Adheres to and Enforces School Policies." About the same time as tender of the respective annual evaluations, both principals again issued Respondent another PDP, each enumerating the respective annual evaluation areas of concern cited therein. Both PDP's again instructed Respondent to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. By letter dated June 8, 1989, to the District, with copies to the principal and assistant principal (her evaluator) at Boca Raton High School, Respondent stated her disagreement with the annual evaluation, acknowledged the earlier problem with the former aide, objected to the alleged deficiency in the annual evaluation on that issue since it was already identified on the mid-year evaluation, and agreed to work to improve on the areas noted in the annual PDP to demonstrate satisfactory performance. About September 1989, the Respondent attended District Level Remediation pursuant to the PDP's as directed by both schools. The workshops were scheduled for September 12, 1989, on Instructional Organization and Development and Communication Verbal and Non-Verbal; and September 13, 1989, on Management of Student Conduct and Classroom Climate. By letter dated December 6, 1989, the principal of Boca Raton High School informed the Respondent that her "performance in the classroom remains unsatisfactory" and stated the reason for the principal's decision and attached the evaluation instruments. In January 1990, the principal of Atlantic High School reviewed the Respondent's performance based on the results of her observations, the observations of Respondent in the classroom by the assistant principals, and the ESOL program coordinating teacher. The principal advised the Respondent that the five concern areas cited in her January and June 1989 evaluations were still areas of concern. The principal also informed the Respondent that two additional areas had been identified. The seven areas noted as concern on the 1990 mid-year evaluation and in the deficiency notice were: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Cli-mate; Demonstrates Ability to Plan Effectively; Demonstrates Self Control; Demonstrates Effective Relationship with CoWorkers; and Adheres to and Enforces School Policies. Thereafter, in March 1990 Respondent was suspended and has remained suspended without pay since about mid-March 1990. The original petition and the instant Petition were later filed seeking Respondent's removal from/termination of her continuing contract teaching position with the District. During all times material, Respondent was the only teacher teaching English for Speakers of Other Languages (ESOL) at Atlantic and Boca. Facts established at the hearing The Respondent's ESOL Educational/Teaching Background Before she began teaching ESOL at Atlantic High School and Boca Raton High School about the 1978-79 school year, Respondent worked in the District's bilingual program where she wrote the grant for funding the bilingual program and trained teacher aides for that program. Respondent holds a Florida teaching certificate in ESOL, and is also certified through about 1996 in supervision, Spanish, and bilingual education. She has a Bachelor of Arts in Humanities, with a major in Spanish, a Master of Arts in Education, both from FAU, two and one-half years completed toward a 3- year Doctorate at Nova University in the field of administration and supervision, and various extension courses. She has been active in various bilingual and/or ESOL education organizations and activities (including Gulf TESOL and the ESOL Leadership Conferences) which include supervisors, coordinators, and other teachers, and her activities included providing advisory input concerning developments in bilingual/ESOL education to school districts, the Department of Education, and various universities which educate/train other such persons. At all times material, Respondent's classes were comprised of limited English proficient (LEP) students who had various English speaking, reading, and writing skill levels, which required Respondent to provide individualized and/or small group instruction and rotate between such persons and/or groups. Such "multi-level" instruction is the biggest challenge to ESOL educators. The Administrators who supervised, evaluated, or observed Respondent The ESOL Program for which Respondent was responsible was part of the English Department. The Chairperson of the English Department was Warren O'Toole. Although department chairpersons may be involved in some situations involving teachers, they are not involved with evaluation problems. Department chairpersons are not an official part of the administration, since they are members of the same bargaining unit as teachers. Department chairpersons lack the authority to conduct formal evaluations of teachers, or to recommend the termination of a teacher. Carole J. Shetler, the current principal at Atlantic High School, has been employed by the Palm Beach County School Board for sixteen years. She has served in the capacity of a classroom teacher, an assistant principal, an administrative assistant, and for the past six years as the principal of Atlantic High School. Ms. Shetler holds certificates from the State of Florida in the areas of English and Administration and Supervision. Ms. Shetler's duties require her to hire and evaluate personnel, manage the budget of the school, supervise student discipline and to supervise the instructional program at Atlantic High School. Since Ms. Shetler first became aware of the Respondent's teaching, in 1984, five administrators at Atlantic High School, including herself, have participated extensively in the Respondent's evaluation process. They were Ms. Shetler, Mr. Perlman, Mr. Williams, Ms. Dawson, and Ms. Thurber. Ms. Shetler observed the Respondent directly in the classroom and she also reviewed observations conducted by her assistant principals and district personnel who were called in to observe the Respondent. Dr. Clara DeFrank was the principal of Boca Raton High School from the 1986-87 school year through the end of the 1988-89 school year. Prior to the 1986-87 school year she worked as a principal at Boca Raton Middle School, an assistant principal, the director of guidance, and as a counselor. Dr. DeFrank was employed by the Palm Beach County School Board for 27 years. Dr. DeFrank has doctorate degrees in Education and Administration and Supervision. She also has a Masters Degree in Guidance Counseling and a Bachelor's Degree in Journalism. Dr. DeFrank is certified by the State of Florida in the areas of: (1) Administration & Supervision; (2) English; (3) Journalism; (4) Speech; (5) Social Studies; and (6) Guidance and Counseling. When Dr. DeFrank was assigned as the Principal of Boca Raton High School her duties required her to supervise the entire staff. Her supervisory responsibilities included the hiring of staff, the giving of assistance and recommending termination of staff when necessary. Dr. DeFrank has known the Respondent since the early 1970's. Dr. DeFrank and the Respondent have been able to communicate on an informal basis. For all three years that Dr. DeFrank was assigned to Boca Raton High School, Dr. Robert Murley, an assistant principal, evaluated the Respondent. Dr. Murley has a B.A. Degree in English, a Masters of Education Degree in Personnel and Organizational Behavior, and a Doctorate in Administration of Higher Education and Organizational Behavior. Dr. Murley is certified by the State of Florida in English, as an Assistant Principal, and as a Supervisor. Dr. Murley monitors and assists all of the beginning teachers at Boca Raton High School. Dr. Norman Shearin, the current Principal at Boca Raton High School, has been employed by the Palm Beach County School Board for 24 years. He has served in the capacity of a classroom teacher, department chairman, activities director, athletic coach, dean, assistant principal, and for approximately ten years as a principal. Dr. Shearin has been assigned as Boca Raton High School's Principal since July 1, 1989. Dr. Shearin has a Bachelor Degree in Mathematics and Social Studies, a Masters Degree in Educational Administration and Supervision and a Doctorate Degree in Educational Leadership and Behavioral Research. Dr. Shearin currently holds a Graduate Certificate from the State of Florida which certifies him in Educational Leadership, Mathematics and several other subjects. In addition to Dr. Shearin's employment with the Palm Beach County School Board, he has also served as an Adjunct Professor for Florida Atlantic University and Nova University. Dr. Shearin presently serves as the Senior Faculty Member for the Educational Staff at Nova University. Respondent's evaluator at Atlantic High School for the 1987-88 school year was James O. Williams. He currently holds a teaching certificate and a certificate in Administration and Supervision. Mr. Williams has been employed by the Palm Beach County School System for 25 years. Respondent's evaluator for the 1988-89 school year at Atlantic High School was Ms. Betty Dawson. Ms. Dawson has served in the position of assistant principal for seven years. Ms. Dawson is certified by the State of Florida in the areas of English and Administration and Supervision. Respondent's evaluator for the 1989-90 school year at Atlantic High School was Ms. Jean Thurber. Ms. Thurber has been employed as a teacher and as an assistant principal during her fifteen years of employment with the School Board. Ms. Thurber has a Bachelor's Degree in Art Education and English, and a Master's Degree in Administration and Supervision. Ms. Thurber is certified as an administrator. Ms. Diane Larange observed the Respondent on September 11, 1989. Ms. Larange has served as the ESOL Program Coordinating Teacher for nine of the twenty years she has worked for the School Board. Ms. Larange is an expert in bilingual education. She has a Master's Degree in Bilingual Education and a Bachelor's Degree in French with a Minor in Spanish and Foreign Language Education. Periodic Observations/Evaluations/PDP's 1/ Teachers are notified in the pre-school week of the evaluation forms which will be used and the basis upon which the teacher will be evaluated. Boca Raton High School also utilizes a mid-year evaluation, in addition to the final evaluation, to assist teachers by pointing out deficiencies prior to the end of the school year. Teachers are notified of the approximate date when the formal observation will take place. The periodic evaluations issued before the 1987-88 school year at Atlantic High School and Boca Raton High School did not reflect an overall satisfactory or unsatisfactory rating but did provide for the teacher to state agreement or disagreement with the content. The mid-year evaluation and the annual evaluation of Respondent's performance at Atlantic High School during the 1985-86 school year reflected the school administrators' concern about their perception of Respondent's interaction with Lloyd Taylor, her ESOL Aide. Respondent was given a letter of expectation by Ms. Shetler, dated October 7, 1986. The purpose of the letter was to set expectations for the new school year so that the problems noted in the prior school year could be avoided. Ms. Shetler was willing to assist Respondent with her noted problems. On February 17, 1987, Ms. Shetler had a conference with Respondent to review progress since the October 7, 1986, Letter of Expectation. During this conference, Respondent interrupted Ms. Shetler and stated that she wished Ms. Shetler "would stop talking about it because it was going in one ear and out the other." Ms. Shetler confirmed the discussion in a letter dated February 24, 1987. During the conference of February 17, 1987, and after the conclusion of the conference, Ms. Shetler felt that Respondent's performance, from the start of the year through their conference, had not improved. Ms. Shetler also believed that the Respondent was unwilling to cooperate with attempts to remediate her performance and behavior. When Ms. Shetler gave the Respondent the evaluation for the 1986-87 school year, she had another conference with the Respondent to discuss the areas that were noted as improvement needed. The specific problems discussed were: (1) The Respondent's waste of classroom time; (2) Respondent's negative classroom climate; (3) Respondent's failure to use the positive aspects of the assertive discipline training which she had been given; (4) Respondent's working relationship with professional staff and (5) Preparing lesson plans. After the evaluation format change in the 1987-88 school year, Respondent's May 1988 annual evaluation by assistant principal James Williams and principal Carole Shetler was overall "satisfactory" (like her May 1988 Boca evaluation), and Respondent received a commendation expressing her willinginess to accept suggestions and grow professionally. It has not been alleged and there is no record evidence that Respondent's performance at Boca before the 1988-89 school year was deemed anything but satisfactory. In the 1987-88 school year, Respondent was evaluated at Boca Raton High School by assistant principal Robert Murley and principal Clara DeFrank when she was rated fully "satisfactory" and awarded two commendations. Respondent's 1988-89 evaluator was assistant principal Betty Dawson who prepared the overall unsatisfactory January 1989 and June 1989 evaluations along with principal Carole Shetler. On October 10, 1988, Ms. Dawson had one of her many conferences with Respondent. Present during the conference were Ms. Shelter, the Respondent, and Ms. Kennedy, the Respondent's Classroom Teachers Association Representative. During the conference, Respondent agreed to use a letter grading system, to make her daily objectives for the students clearer, and to note the objectives on the board. While the meeting was being conducted, the Respondent spoke to her evaluator, Mrs. Dawson, in a manner which indicated that she was upset. On January 11, 1989, Atlantic High School completed a mid-year evaluation of Respondent's performance. The Respondent received five (5) areas of concern on this mid-year evaluation. Attached to Respondent's mid-year evaluation were: (1) October 21, 1988, observation notes, (2) Respondent's November 28, 1988, summative observation instrument, and (3) Summary of the conference which Ms. Dawson had with Respondent on December 1, 1988, which directed Respondent to "work on beginning class on time and handling material." With respect to her January 1989 mid-year evaluation at Atlantic High School, Respondent expressly noted thereon that it was a review of previously discussed ideas and that she disagreed with some of it. She was then placed on her first PDP with a 30-day timeline to complete the remediation prescribed. The numerical concerns on the mid-year evaluation correlate with the "criterion" numbers/areas of concern cited on the PDP. The Respondent's first PDP at Atlantic High School directed the Respondent to: (1) Read Domains 2, 3, and 5, in Domains of the Florida Performance Measurement System; (2) Visit with Ms. Tarkinson's and Ms. Fail's class; (3) "Demonstrate professionalism at all times;" and (4) "Make a sincere positive effort in working toward positive relations with co-workers." Assistant Principal Robert Murley and Principal Clara DeFrank at Boca Raton High School also evaluated Respondent in the 1988-89 school year when a mid-year evaluation was also conducted. Respondent was then cited with five areas of concern (identical to the 5 cited in her Atlantic mid-year evaluation). Like Atlantic's January 1989 mid-year evaluation, since Respondent also had five areas of concern cited at Boca Raton High School, she was placed on a 30-day PDP which she timely complied with and satisfied all of the remediation strategies. Attached to the Respondent's mid-year evaluation at Boca Raton High School in January of 1989 were (1) Summative observations for October 26, 1988, and January 18, 1989; (2) A Deficiency notice dated January 23, 1989; and (3) The Respondent's Professional Development Plan. The concerns expressed in the January 1989 mid-year evaluation at Boca Raton High School were based on the administrators' belief that: (1) The Respondent behaved unprofessionally with her students; (2) The respondent behaved unprofessionally with Ms. DelBarco; The Respondent failed to start class on time; and (4) The Respondent behaved inappropriately during a parent conference. The Respondent's first PDP at Boca Raton High School directed the Respondent to: (1) Read Domains 2 and 3 in Domains of the Florida Performance Measurement System; (2) Complete "Classroom Management Professional Growth Component;" (3) Display a positive professional demeanor at all times; and Demonstrate professional relationship with noninstructional personnel. In a conference which was held on June 12, 1989, the Respondent received her annual evaluation from Atlantic High School. Attached to the Respondent's evaluation were: (1) A deficiency notice dated June 6, 1989; (2) A summary of conferences held with the Respondent from February 23, 1989, through May 11, 1989; (3) Several incident reports involving students; (4) Respondent's summative observations dated February 28, May 1, and June 5, 1989; and (5) The Respondent's up-dated Professional Development Plan which recommended "district level remediation in the Fall." The observation documents reported that during the observations the Respondent either started late or that she had "very little instruction going on." At the time of the conference, Ms. Dawson still had concerns about the Respondent's performance. Although Respondent had successfully complied with and otherwise completed the remediation set forth in her January 1989 (first Atlantic) PDP timely, within the prescribed thirty days, Respondent was nonetheless again cited in those same five areas on her June 1989 evaluation by Dawson and Shetler. The areas of concern/criteria (C-12, self control, and C-13, effective working relationships with coworkers) were cited on both the 1988-89 mid-year and annual evaluations and related PDP's solely because of the September 8, 1988, Delbarco incident even though no other comparable incidents had occurred with any aide, coworker, or administrator. With 5 areas of concern cited (rather than 4 or less), Respondent's annual evaluation was "unsatisfactory' and she was necessarily placed on her Atlantic PDP. Had the areas of "concern" C-12 and C-13 not again been cited on her evaluation, Respondent would not have been placed on her June 1989 second (1988- annual) PDP since she would have had an overall "satisfactory" evaluation. However, since she was again placed on a PDP, she was the subject of District remediation at the beginning of the 1989-90 school year, increased observations, and a mid-year evaluation. Later, in May 1989, Respondent was tendered her annual, and last Boca evaluation, which was also completed by Murley and DeFrank, again citing the same five concerns set forth in the mid-year evaluation, as well as another titled "Adheres to and Enforces School Policies." On September 11, 12, and 13, 1989, the Respondent received District level remediation at the request of both schools. The Respondent was referred for District level remediation because the Administrators at both schools felt like they had exhausted their resources with regard to the workshops, reading, and suggestions they could offer. On September 11, 1989, the Respondent was observed and counseled by Ms. Diane Larange, the ESOL Program Coordinating Teacher. At a later date, Ms. Larange sent Ms. Shetler and the Respondent a list of ESOL teachers she felt the Respondent should visit. Ms. Larange was of the opinion that the observation was overall satisfactory, although there were some minor things that could have been improved. Ms. Larange had previously observed the Respondent on several occasions in prior years and all of those observations were generally satisfactory. On September 12 and 13, 1989, the Respondent received assistance from Dr. Mary Gray, an expert in teacher education. The Respondent was assisted in the areas of: (1) Instructional organization and development; (2) Verbal and nonverbal communication; (3) Management of student conduct; and (4) Classroom climate. During the remediation sessions the Respondent was, in general, unenthusiastic. This was largely because the Respondent did not feel that the remediation offered was addressing any specific professional need relevant to her. The Respondent had requested assistance specifically addressed to the teaching of ESOL classes, which assistance was not provided. At no time prior to December 14, 1989, did Murley or any other Boca administrator or designee discuss with Respondent the results of any of the observations or summatives preceding that date in the 1989-90 school year, including her last (11-1-89) fully satisfactory observation/summative. Ultimately, about January 5, 1990, Respondent was tendered her mid- year evaluation and later a letter with attachments from Shetler dated January 8, 1990, referencing the evaluations and attachments, and advising that further assistance would not be recommended. Except as to her June 1986 annual evaluation, Respondent expressly disagreed with the material content of most of her periodic evaluations setting forth areas allegedly needing improvement, unsatisfactory areas, and/or areas, of concern, from January 1986 through January 1990. In each instance where Respondent disagreed with the material content of those evaluations before the evaluation format change in the 1987-88 school year, Respondent expressly noted her disagreement by marking the box stating "I disagree with the content of this evaluation," and on two such instances she forwarded letters expressing the substance of her disagreement. ESOL Experts and Unique Nature of ESOL Instruction ESOL is an educational program which uses the English language exclusively to teach English to speakers of other languages. ESOL teachers are not required to know the languages spoken by their students. ESOL classes should ideally be taught in a non-threatening manner using fun activities. The field of ESOL encourages the "buddy system." The buddy system pairs a beginning level ESOL student with a higher level ESOL student who speaks the same language. ESOL advocates cooperative learning, in which students help one another. Yvonne Cadiz is an expert in ESOL education such as observing, assessing, evaluating, and providing expert training and teaching, implementing the currently accepted newer ESOL teaching methodologies to ESOL teachers, in advising and assisting county school districts in implementing the service plan containing such newer methodologies and training techniques, and in advising the State Board of Education in those areas to develop rules to implement on-going changes in ESOL education. Ms. Cadiz is the past president of Gulf TESOL and a past sponsor of the ESOL Leadership Conference. The evaluation instrument and related summative used by the District to evaluate teachers is geared primarily to regular classroom teachers, not to teachers of "multi-level" ESOL instruction, which contains unique teaching methodologies. Administrators performing the observations and evaluations using those instruments generally lack the specialized ESOL background to recognize or adequately evaluate ESOL instructional skills or otherwise make effective recommendations on how to improve ESOL educational techniques. At all times material, none of the District's principals or assistant principals assigned to observe or evaluate Respondent had any of the requisite ESOL educational background or knowledge of the unique nature of ESOL education or its teaching methodologies. Accordingly, the criticisms directed to Respondent by such evaluators in their observation summatives, related documents, and periodic evaluations cannot be fully credited as valid and accurate criticisms. Such evaluators or other District administrators do not appear to have adequately observed and/or evaluated Respondent's teaching abilities or to have otherwise suggested or offered competent, adequate, suggestions for improvement or related remediation of perceived performance deficiencies. Accordingly, I credit the opinion of ESOL experts Yvonne Cadiz and Diane Larange that Respondent's classroom teaching skills were satisfactory. Respondent's treatment of work associates An ESOL Aide named Roxana DelBarco was hired for the 1987-88 school year to be an aide in the Respondent's ESOL classes at both Boca Raton High School and Atlantic High School. 2/ Ms. DelBarco apparently worked as the Respondent's ESOL aide for the entire 1987-88 school year without any significant incident. Ms. DelBarco returned in the same capacity for the 1988-89 school year. On September 8, 1988, an incident occurred in which the Respondent became annoyed or frustrated by Ms. DelBarco's inability to successfully complete an errand. In the course of sending Ms. DelBarco on the errand a second time, the Respondent raised her voice or otherwise spoke harshly to Ms. DelBarco in front of the students. The manner in which the Respondent spoke to Ms. DelBarco hurt the latter's feelings and caused her to cry. As a result of the September 8, 1988, incident, Ms. DelBarco decided she no longer wished to work with the Respondent and reported her decision to resign to the school administrators. A conference was held to try to persuade Ms. DelBarco to change her mind. During the course of the conference, the Respondent admitted she had raised her voice, apologized for doing so, and offered to talk to Ms. DelBarco about changing her decision to resign. Ms. DelBarco did not change her mind. As a result of the September 8, 1988, incident involving Ms. DelBarco, the Respondent was given written reprimands by both Atlantic High School and Boca Raton High School. Atlantic High School provided the Respondent with two recommendations: (1) Treat future aides in a "courteous and professional manner," while discussing differences of opinion in private and (2) Communicate with students in a courteous and kind manner, while refraining from "sarcasm or humiliating remarks as a means of discipline." Boca Raton High School advised the Respondent that she was to behave with staff and her students in a manner which demonstrated "positive, courteous interactions free from sarcasm, unnecessary loudness/harshness, or embarrassment in front of others." At the time of the September 8, 1988, incident, the two schools could have disciplined the Respondent by at that time placing her on a PDP, citing "criterions" 12 and 13. Both schools elected not to do so at that time. However, even though there were no similar incidents, both schools cited "criterions" 12 and 13 in the Respondent's mid-year evaluations at both schools, and placed her on PDP's. The Respondent timely and satisfactorily complied with and completed the prescribed remediation set forth in her 1988-89 mid-year PDP's (her first PDP's) without any further incidents relating to "criterions" C-12 or C-13 during the 30-day period specified in the PDP's or during the remainder of the 1988-89 school year. The foregoing notwithstanding, the Respondent's annual evaluations at the end of the 1988-89 school year cited "criterions" C-12 and C-13. As a direct result of these repeat citations, the Respondent was placed on a second PDP at both schools, even though there had been no similar incidents since the DelBarco incident. Had these two "criterions" not again been cited, the Respondent's annual evaluations at both schools would have been satisfactory. In view of the time of and the nature of the September 8, 1988, incident with Ms. DelBarco, and in view of the fact that there were no similar incidents during the remainder of the 1988-89 school year, the Respondent should have received satisfactory annual evaluations at both schools for the 1988-89 school year. 3/ At the beginning of the 1989-90 school year, an ESOL Aide named Maria Montiel was assigned to be the aide in the Respondent's ESOL classes at Atlantic High School. From the very beginning, the Respondent was apparently annoyed by the fact that Ms. Montiel seemed to be somewhat lacking in initiative, energy, and direction, even though Ms. Montiel was, generally, a sweet, warm-hearted, caring person. 4/ The Respondent went to one of the administrators, Ms. Thurber, to explain that she was having problems getting Ms. Montiel to follow instructions. Among other things, Ms. Montiel had questioned whether she was required to perform certain tasks the Respondent had asked her to do; tasks Ms. Montiel seemed to regard as work more appropriate for custodians than for teacher aides. As a result of being dissatisfied and annoyed with Ms. Montiel's performance, on a couple of occasions during the first three weeks of the 1989- school year, the Respondent spoke to Ms. Montiel in a loud voice or in a harsh tone of voice. The Respondent had good reasons for being annoyed on both occasions. After about three weeks, Ms. Montiel decided that she did not wish to work as the Respondent's aide. At Ms. Montiel's request, she was transferred to work at another school. Ms. Montiel's primary reason for not wanting to work with the Respondent was that she felt under-appreciated and under-utilized. During the 1989-90 school year, after Ms. Montiel left, Harvey Lee, Jr., was assigned to work as an aide at Atlantic High School in the Respondent's first period class and for part of the Respondent's planning period. Early in their relationship there was an incident in which the Respondent spoke harshly to Mr. Lee. Mr. Lee discussed the incident with the Respondent, the Respondent apologized to Mr. Lee, and for the remainder of that school year Mr. Lee and the Respondent had a harmonious relationship. During the 1989-90 school year on one occasion the Respondent raised her voice to a substitute teacher, Inga D'Orazio, in front of the class. The Respondent was admonishing the substitute for not following instructions the Respondent had left. 5/ Respondent's treatment of her students The Respondent appears to have a tendency to be impatient with students who are disruptive or who otherwise appear not to be trying to learn. As a result of this tendency, she probably refers more students to the office than the average teacher. 6/ But the evidence in this case does not show that the Respondent regularly engages in inappropriate or excessive disciplinary referrals. 7/ It is probable that the majority of the students the Respondent referred to the office for disciplinary reasons were of Haitian origin. 8/ It is clear that the majority of the students in the Respondent's classes were of Haitian origin. The Respondent's discipline referrals were all based on Respondent's evaluation of the conduct of each student referred. The Respondent did not discriminate on the basis of race or place of national origin in her discipline referrals. The Respondent did not prohibit her students from going to the bathroom during class. She did, however, discourage them from doing so. Her discouragement was consistent with school policy at both schools which generally discouraged teachers from issuing restroom or hall passes to students, absent an emergency. The Respondent provided reasonable assistance to her students at reasonable times and permitted her aides to do likewise. The Respondent would refuse to assist students or to answer student's questions during the course of such activities as lectures or testing. Such refusals were reasonable. At all times relevant to this case, the Respondent communicated with and related to the students in her classrooms to such an extent that the students received at least a minimum educational experience. Miscellaneous Findings The School Board of Palm Beach County, Florida, has entered into an Agreement with the Classroom Teachers Association (CTA), the representative of the teachers' bargaining unit. Said Agreement delineates terms and conditions of employment for teachers and provisions of this Agreement are applicable to Respondent's employment. Teachers at Atlantic High School are expected to have their grade book, attendance book, and lesson plans available for substitute teachers. On one or two occasions during the 1989-90 school year the Respondent may have failed to have a lesson plan available or may have had an inadequate lesson plan available for a substitute. 9/ During the 1986-87 school year, the Respondent was slow in complying with written instructions that she complete her course expectation and class rules. She did, however, ultimately comply.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the School Board of Palm Beach County issue a final order in this case dismissing all charges in the Amended Petition For Dismissal, restoring the Respondent to her position of employment on the instructional staff, and awarding the Respondent back pay from the date of her suspension without pay until the day she is restored to her position of employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June 1991.
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
The Issue The issue in this case is whether the Brooks of Bonita Springs II Petition to Establish a Uniform Community Development District [By Rule] (the Petition) should be granted.
Conclusions Under Section 190.003(6), Florida Statutes (1997), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." Sections 190.006 through 190.046, Florida Statutes (1997) and (Supp. 1998), as amended by Section 35 of Chapter 99- 378, Laws of Florida (1999), constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011, Florida Statutes (1997), enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012, Florida Statutes (Supp. 1998), as amended by Section 35 of Chapter 99-378, Laws of Florida (1999), lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems and facilities for water management; water supply, sewer, and wastewater management; CDD roads meeting minimum county specifications; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.005(1)(a), Florida Statutes (Supp. 1998), requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. The Petition in this case meets all of those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. The Petition in this case meets all of those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). The Petitioner in this case has done so. Section 190.005(1)(b), Florida Statutes (Supp. 1998), requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments as well. The Petitioner in this case has met those requirements. Section 190.005(1)(c), Florida Statutes (Supp. 1998), permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Lee County has exercised this option and has adopted a resolution in support of establishment of The Brooks II CDD. Section 190.005(1)(d), Florida Statutes (Supp. 1998), requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. The Petitioner has met those requirements. Under Section 190.005(1)(e), Florida Statutes (Supp. 1998), as amended by Section 35 of Chapter 99-378, Laws of Florida (1999), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 In this case, all statements contained within the Petition have been found to be true and correct. Factor 2 In this case, it was found that the establishment of The Brooks II CDD is not inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Factor 3 In this case, it was found that the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Factor 4 In this case, it was found that The Brooks II CDD is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. Factor 5 In this case, it was found that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Factor 6 In this case, it was found that the area to be served by The Brooks II CDD is amenable to separate special-district government. REPORT AND CONCLUSIONS SUBMITTED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of September, 1999. COPIES FURNISHED: Ken van Assenderp, Esquire Young, van Assenderp & Varnadoe 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Donna Arduin, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 1601 The Capitol Tallahassee, Florida 32399 Carol Licko, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shummard Oak Boulevard, Suite 315 Tallahassee, Florida 32399 Alfred Bragg, Assistant General Counsel Department of Community Affairs 2555 Shummard Oak Boulevard, Suite 315 Tallahassee, Florida 32399 Donna Marie Collins, Esquire Patrick White, Esquire Lee County Attorney's Office 2115 Second Street, Room 620 Fort Myers, Florida 33901
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
The Issue Whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j) and rule 6A-10.081(2)(c)4., as alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2020). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2020). Stipulated Facts Respondent holds Florida Educator’s Certificate 766965, covering the areas of Educational Leadership, Elementary Education, and School Principal, which is valid through June 30, 2023. During the 2017-2018 school year, Respondent was employed as a Principal at GES in the LCSD, where he had been employed since 2008. During the 2017-2018 school year, Brooke Jahn (now Brooke Solz) was employed as a classroom teacher at GES, and, therefore, under the Respondent’s supervision. Ms. Jahn was married to a LCSD employee assigned to another school. Ms. Jahn was an adult during all times material to this complaint. On June 11 and 12, 2018, Respondent and Ms. Jahn attended the Instructional Leadership Team Summer Institute hosted by the Florida Department of Education at the Innisbrook Resort & Golf Club in Palm Harbor, Florida. On or about July 11, 2018, Ms. Jahn requested a transfer from GES to another school within the LCSD. On or about July 12, 2018, Mr. Solz reported to LCSD Superintendent Rocky Hanna that he was involved in a romantic relationship with Ms. Jahn. On July 18, 2018, Superintendent Hanna placed Respondent on administrative leave with pay pending the pending the outcome of an investigation. On August 31, 2018, Leon County Schools Superintendent Rocky Hanna issued Respondent a letter of reprimand. On August 31, 2018, Mr. Solz was reassigned to the LCSD Department of Teaching and Learning, effective September 4, 2018. On September 17, 2018, Professional Practices Chief John Hunkiar reported Mr. Solz to the Office of Professional Practices Services. On November 8, 2018, the Florida Department of Education, Office of Professional Practices Services, initiated an investigation into alleged misconduct by Respondent. On or about July 9, 2019, Mr. Solz was reassigned as the principal at Astoria Park Elementary School in Leon County.1 Evidentiary Findings The following findings of fact are supported by the record. Contrary testimony and evidence has been considered and rejected. David Solz Mr. Solz is, by all credible accounts, a “wonderful” principal and administrator, with a solid reputation as an LCSD administrator. Prior to this proceeding, he had not been the subject of any previous complaints or disciplinary actions during his 20-plus years in education. Testimony and recorded statements that Mr. Solz gave preferential treatment to others, including Ms. Jahn, that he targeted or “formally” wrote up teachers that were not on his preferential list, or that he “only hires young, attractive teachers,” were neither credible nor persuasive. The more credible testimony demonstrated that Mr. Solz was even-handed in his approach to the teachers at GES. If someone showed an interest in moving up in the academic system, he was willing to support them. If they wanted to 1 The Joint Pre-hearing Stipulation identified the date as July 9, 2018. The date was corrected to 2019 on the record at the hearing. stay in the classroom, he was accepting. If they felt they needed time away, even up to a year, he was accommodating. He did not show favoritism, and he did not “punish” those who disliked him. By the 2017-2018 school year, Mr. Solz had been divorced for several years. By April of 2018, he was apparently dating a woman who taught at either Ft. Braden Elementary School or Riley Elementary School. That person may have thought that she had some “power” because she was dating a principal, but there was no evidence that she did. More to the point, that person was not Ms. Jahn. Mr. Solz was an “open door” administrator. His office was in plain view, and he made it a practice to never be alone in his office with another teacher with the door closed. There was no evidence that he ever did so. The evidence unequivocally established that Mr. Solz was a good leader at GES, that he was purposefully respectful of his female colleagues, and avoided situations that could be misconstrued. Brooke Jahn Ms. Jahn was a teacher at GES starting in August 2013. By all credible accounts, Ms. Jahn was ambitious and a go-getter. She knew that she wanted to move from being a classroom teacher into administration. She set high goals, and was willing to take on the work necessary to advance in her career in education, work that others were not willing to do. During the 2017-2018 school year, in addition to her duties as a GES teacher, Ms. Jahn was taking classes to earn her Master’s Degree in Education Leadership. Holding a Master’s Degree in Education Leadership allows one to take a position as a dean, an assistant principal, a principal, or a leader at the school district in some capacity. As part of the curriculum for her degree, Ms. Jahn was required to serve an internship. Ms. Sumner supervised Ms. Jahn, which required Ms. Jahn to spend “lots of time” in the office, generally during her planning period or after school. Ms. Wyatt documented her progress. Mr. Solz was not overly involved with Ms. Jahn’s internship. Upon her completion of her Master’s program, Ms. Jahn became one of only three teachers or counselors at GES holding that degree, the others being Mr. McKhan and Ms. Wyatt. In addition to receiving her Master’s Degree in Education Leadership, Ms. Jahn took and passed the Florida Educational Leadership Exam (FELE) during the 2017-2018 school year, which qualified her to be considered for a position in education administration. During the period at issue, she had not yet applied to the administrator pool. During the 2017-2018 school year, Ms. Jahn taught third grade at GES. In previous years, Ms. Jahn taught kindergarten. Ms. Jahn wanted to move to the third-grade classroom for several reasons. She wanted experience in detecting early reading deficits. Her kindergarten students were “learning to read.” By third grade, students are “reading to learn.” Therefore, reading deficits by third grade can affect student achievement. In addition, third grade is a Florida Statewide Assessment (FSA) standardized test grade. Ms. Jahn recognized that experience in administering the FSA was almost a requirement for assignment as an assistant principal.2 During the 2016-2017 school year, Ms. Jahn was selected by her kindergarten teacher peers to be the team leader for the kindergarten section. Mr. Solz had no role in that process. Ms. Jahn’s selection as kindergarten team leader earned her a spot on the SITE Committee. The SITE Committee consists of grade-level team leaders, as well as persons representing paraprofessionals, custodians, cafeteria workers, ESE students, parents, and other school functions. As a SITE-based school, the SITE Committee serves to decentralize decision 2 Respondent suggested that Ms. Jahn’s transfer from kindergarten to third grade was evidence of favoritism. There was no evidence that the transfer was anything other than a normal and routine transfer, and showed no more favoritism than Ms. Vasquez teaching kindergarten and second grade at GES, Ms. Baggett being assigned to teach second, third, and fourth grades over the years at GES, or Ms. O’Brien teaching third and first grades at GES. making away from the Principal, and allows for a collaborative process by representatives of all segments of GES employees. Ms. Jahn was thereafter nominated and selected by the other members of the SITE Committee as the SITE Facilitator. That position required a great deal of work and effort, which Ms. Jahn gladly took on, realizing the career benefits derived from the experience. Mr. Solz had no role in that process. Ms. Jahn was also selected to serve on the Teacher Education Center (“TEC”) as a professional learning advocate. As a TEC representative, Ms. Jahn provided teachers with opportunities for training to maintain their teaching certifications and assisted them in making their way through the certification process. The TEC is also engaged in managing the professional development budget for the school. Ms. Jahn had to be involved in professional development as part of her Master’s Degree internship, and the TEC helped to fill that requirement. The TEC representative is open for any teacher who wants to apply. Other than complaints from several witnesses that they were not solicited by school-wide email, or by personal entreaty from Mr. Solz “and offered for nomination or from, you know, veteran teachers who have that experience,” there was no evidence that any teacher other than Ms. Jahn, including the complaining witnesses, had the interest, drive, or commitment to apply for the TEC. There was no evidence that the position was required to be advertised by email or subject to personal invitation. Ms. Jahn sought out the position, and applied. The process of appointment was somewhat vague, except that Mr. Solz did not unilaterally appoint Ms. Jahn to the position.3 3 Ms. Baggett, despite averring that Mr. Solz appointed Ms. Jahn to the TEC, admitted at the hearing that she had no information that Mr. Solz appointed Ms. Jahn to that position “[o]ther than it's just, I guess, common knowledge that the principal of the school would, you know, would approve these positions.” Supposition, speculation, and “common knowledge” are not substitutes for competent, substantial, and persuasive evidence. The team leader, SITE facilitator, and TEC representative positions were subject to a modest stipend, but the duties involved work that far exceeded the pay -- “probably cents on the hour” -- she received for serving. However, Ms. Jahn understood that having experience in various areas would benefit her in achieving her long term goals. Ms. Jahn was also selected to serve on the District Advisory Council (“DAC”), a group of teachers, parents, administrators, and school board members that meet to discuss issues that affect students and classrooms. It is an unpaid, volunteer position that meets after school hours. Dr. Smith asked Mr. McKhan, Ms. Wyatt and Ms. Jahn to share the role. Since Mr. McKhan and Ms. Wyatt had previously served, Ms. Jahn took on most of the duties. Mr. Solz had no role in that process. Ms. Jahn was part of a group of teachers invited by Dr. Smith to observe other schools in the District in order to implement the “Leader in Me” program at GES. Ms. Jahn was exposed to leadership techniques that she would not have been exposed to as a classroom teacher. Mr. Solz had no role in that process. Ms. Jahn routinely attended monthly faculty meetings, which were open to all faculty at GES. She was able to apply some of the faculty meetings into credit for her Master’s Degree. She was required to mark attendance and document credit for every faculty meeting. There was no evidence that Mr. Solz was involved in that process. Ms. Jahn was an active participant in the faculty meetings, which may have rubbed some less participatory teachers the wrong way, with witnesses complaining that Mr. Solz gave undue weight to Ms. Jahn’s contributions, but was dismissive of their comments, failing to take them “seriously.” The evidence, such as it was, that Ms. Jahn was given some sort of preferential treatment at the faculty meetings was not supported by a single specific instance, but was “supported” by the fall-back phrase that “it was, again, another one of the school-wide known fact.” Even if it was established that Mr. Solz valued Ms. Jahn’s input, such would not establish preferential treatment. It is just as easy to draw the inference that Ms. Jahn’s statements were more pertinent than others. The more credible testimony established that Mr. Solz was not dismissive or disrespectful to any of the staff at faculty meetings.4 The testimony that Mr. Solz afforded preferential treatment to Ms. Jahn at faculty meetings lacked even basic credibility, and is not accepted. Ms. Jahn also trained a teaching intern, Ms. Hobbs. Ms. Hobbs was effusive in her praise of Ms. Jahn, crediting her success and her teaching style to Ms. Jahn’s tutelage. Because of Ms. Jahn’s success in mentoring Ms. Hobbs, Ms. Hobbs was, by the end of the 2017-2018 school year, able to handle the class on her own, which is the goal of a successful internship. While the class was under Ms. Hobbs’ instruction, Ms. Jahn was able to leave the classroom -- though not the campus. The evidence firmly established that Ms. Jahn set her goals high, and took steps that were not easy to achieve those goals. There was no credible evidence to suggest that she expected to be given anything by Mr. Solz or anyone else. She was not, as intimated by others, appointed to her duties by Mr. Solz. By all credible accounts, she earned her accolades. Though others reacted negatively, there was nothing to suggest that others were willing to put in the effort, or that they had earned the respect necessary to be selected by their peers to one of the many available positions. Allegations in the Administrative Complaint During the 2017-2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent. 4 Mr. Solz was more forceful; stating that the allegation he was dismissive or rude during faculty meetings “is a lie, a purposeful lie.” As described, during the 2017-2018 school year, Ms. Jahn took on a steady stream of jobs designed to advance her career. As a result, she met often with members of the GES administration, including primarily Ms. Wyatt and Ms. Sumner. The previous year she met frequently with Dr. Smith. She also met with Mr. McKhan and Mr. Solz. There was nothing in any of those meetings that contained even a whiff of impropriety. The 2017-2018 school year ended for teachers the first week of June 2018. Teacher contracts end on the second day after the last day of school. If a teacher’s contract is renewed, the contract renewal becomes effective on the first day of school in August for teachers. Ms. Jahn was not under contract and did not work at GES over the summer.5 Ms. Jahn was not seeing Mr. Solz in anything other than a professional capacity during the 2017-2018 school year. Despite the rumors, gossip, and innuendo bandied about by several witnesses, there was absolutely no competent, substantial, and credible evidence to support that Mr. Solz and Ms. Jahn were engaged in any sort of romantic, much less sexual, relationship at any time prior to the last day of classes during the 2017-2018 school year. By the time the 2017-2018 school year ended, Ms. Jahn had received her Master’s Degree in Education Leadership and passed the FELE. She had been a classroom teacher for eight years, and was starting to look for other opportunities. However, for reasons related to the LCSD summer teacher transfer policy and postings, she had not yet done so. During this same period, difficulties in Ms. Jahn’s marriage began to come to a head. The reasons are unimportant, except for the fact that they had nothing to do with Mr. Solz. 5 Ms. Jahn had signed a contract for the coming school year, but it was pending board approval. She was not working as a teacher at GES, but was slated to teach private swimming lessons over the summer “to make extra summer money.” In late May 2018, Mr. Solz became aware that the 2018 Instructional Leadership Team Summer Institute was to be held over the weekend of June 11 and 12, 2018, in Tampa, Florida. The conference was limited to 25 principals from around the state. Mr. Solz applied, and was accepted. He then realized that he could bring a qualified teacher leader from his school. Since it was a leadership conference, leadership experience was a prerequisite. The only people at GES who were not already administrators and who were qualified were Ms. Wyatt and Ms. Jahn.6 Ms. Wyatt was already slated to attend the Superintendent’s Leadership Academy in Tallahassee. She did not want to pass it up because she had applied for the assistant principal pool that year. People who were interviewing applicants for the pool were leading that meeting, creating a good networking opportunity for Ms. Wyatt. Mr. Solz invited the other leadership candidate, Ms. Jahn. He extended the invitation for her family to attend as well, a common practice. Ms. Jahn accepted the invitation. She had to rearrange swimming lessons and child care in order to attend, but did so because it was important to her efforts to professionally advance. Her husband could not attend for professional reasons. Mr. Solz and Ms. Jahn travelled separately to Tampa. By the time of the conference, Ms. Jahn had come to the conclusion that her marriage was heading for divorce. She took the opportunity to visit her sister in the Tampa area. It was a stressful period. Mr. Solz and Ms. Jahn arrived separately at the convention hotel on Friday evening. Other than Mr. Solz assisting Ms. Jahn in getting checked in, they had no contact with one another that evening. After the conference sessions on Saturday, Mr. Solz and Ms. Jahn had dinner as part of a group. It was, according to both, the first time they had 6 By this time, Mr. McKhan had been appointed and was serving as an assistant principal at Pineview Elementary School. ever been alone with one another. There was no evidence to the contrary. During dinner, Ms. Jahn disclosed to Mr. Solz that she was having marital difficulties, but no more. The next morning, after a difficult conversation with her husband the night before, Ms. Jahn came down from her room in obvious distress. She indicated that she was having a “panic attack.” Mr. Solz walked with her to get coffee, talked with her, told her it would be OK, and gave her an “awkward side-ways hug.” He made sure she was engaged in the Sunday conference sessions, which eased her anxiety. After the Sunday session was over, Ms. Jahn went back to Tallahassee. Mr. Solz stayed for a while to meet with principals he knew who were coming in for a separate Florida school administrators conference. He had dinner with several of his colleagues, and drove home. Mr. Solz and Ms. Jahn did not see each other for several weeks after. Mr. Solz visited family in Savannah for a week and, upon his return, had his children for a week which entailed a trip to Disney World. Although Ms. Jahn’s divorce was moving forward, she took a pre-planned cruise with her then-husband and her children. However, during that period, Mr. Solz and Ms. Jahn had begun to text one another and spoke on the phone. They started to realize they had things in common, and might like to pursue a relationship. Before they did anything to advance any sort of sexual relationship, they mutually decided that Mr. Solz should self-report their interest to the Superintendent. At that time, the “relationship” was all verbal and through texts. Other than the “awkward side-ways hug,” there had been no physical component to the relationship. Mr. Solz testified credibly that when he met with Superintendent Hanna on July 12, 2018, “I felt like we [he and Ms. Jahn] had a friendship that was easily blossoming into a romantic relationship.”7 Prior to their decision to self-report, Ms. Jahn had already decided she needed to move from GES to diversify her experience to ultimately move out of the classroom into administration. For a person holding an Education Leadership degree, it is common knowledge that in order to advance, a teacher must move around to different schools. Ms. Jahn had been researching other opportunities with the LCSD, and had applied to be a reading coach at Griffin Middle School, as well as several other less desirable positions. On July 11, 2018, and again on July 12, 2018, Ms. Jahn requested, in writing, a transfer from GES. In describing her interview with Ms. Jahn on July 12, 2020, Ms. Kraul testified that: She indicated again that she wants an administrative experience. She used the figure 150 percent leaving Gilchrist of her own free will. That she wants a middle school experience and she was very aware that she would not be eligible for an assistant principal position straight out of the classroom. That this was her ticket to get more experience. Ms. Jahn also believed it would be easier for her to stand out professionally at Griffin Middle School. Ms. Kraul testified that Ms. Jahn was waiting out the LCSD teacher transfer period and “that's, I believe, where she was when I met with her in July.” There is not a shred of competent substantial evidence to suggest that Ms. Jahn’s desire to transfer from GES was based on anything other than her desire to pursue her long-held goal of moving from a classroom position into a position in administration. There is no evidence that Ms. Jahn was pressured 7 Though not relevant to the specific allegations of this proceeding, it merits acknowledgement that Mr. Solz and Ms. Jahn have since married, and were married as of the date of the final hearing. into seeking the transfer, or that her request had anything to do with Mr. Solz. On July 12, 2018, Mr. Solz reported to Superintendent Hanna that he and Ms. Jahn were involved in a relationship that was becoming romantic. They had not been “caught.” There was no evidence that they knew of the purported “anonymous emails.”8 Mr. Solz and Ms. Jahn were early in their “romance,” having not yet passed out of the talking and texting stage. The decision to report was a volitional act designed to avoid gossip and innuendo, and establish a path forward without “direct report” conflict. Mr. Solz was not even certain that he was required to report, since the LCSD fraternization policy prohibited contact between staff and students, and the sexual harassment policy dealt with “unwelcomed” conduct. Nonetheless, Mr. Solz decided to report their blossoming interest because it “just felt like it was the right thing to do.” The evidence conclusively established, despite the suppositions and gossip of others, that there was no sexual relationship between Mr. Solz and Ms. Jahn prior to the July 12, 2018, self-report. On July 18, 2018, Superintendent Hanna placed Mr. Solz on administrative leave with pay. There was no competent, substantial, or persuasive evidence to support a finding that, at the time of Mr. Solz’s suspension, he and Ms. Jahn had commenced a sexual relationship. 8 The first “anonymous email” was not received in evidence. The alleged recipient, Ms. Paul, had no recollection of it, other than she forwarded it to Ms. McAllister. Ms. McAllister had no recollection of receiving, reviewing, or forwarding the first email. Its contents are a mystery. That alleged email has no evidentiary value. The second “anonymous email” came to Ms. Paul on July 15, 2018, and she forwarded it to Ms. McAllister and Superintendent Hanna on July 16, 2018. The anonymous “former [formal?] complaint by teachers” could not have come from anyone with much knowledge of Ms. Jahn, since the “teachers” could not even manage to get her name right, calling her “Mrs. Garret.” Garrett is the first name of Ms. Jahn’s ex-husband. As with the illusory first email, the second “anonymous email” has no evidentiary value. On August 31, 2018, Superintendent Hanna issued Respondent a letter of reprimand which included reassignment of Mr. Solz as a Principal on alternative assignment in the Department of Teaching and Learning.”9 The allegation that “[d]uring the 2017/2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent,” was not proven. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3. of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included . . . training not offered or made available to other teachers. This allegation is predicated on there having been a “relationship.” Since there was no relationship, the allegation was not proven. However, in addition, there was no evidence that Respondent afforded Ms. Jahn preferential treatment as compared to similarly situated employees. There were only two other “similarly situated” employees who had the education and the ambition to be considered for leadership roles at GES, Mr. McKhan and Ms. Wyatt. By the time the more serious allegations in this case were alleged to have occurred, Mr. McKhan had been assigned as Assistant Principal at Pineview Elementary School. 9 Respondent appears to argue that a negative inference should be drawn from Mr. Solz’s failure to file a grievance regarding the reprimand. A review of the letter shows it to have involved an allegation of conduct in April 2018, which Ms. Kraul testified “was nobody’s business what he did in his personal time, after hours,” and an allegation of use of electronic media for non-educational purposes,” which was not an issue in this proceeding at all. Why Mr. Solz elected not to grieve the reprimand was not explained, but no inference of wrongdoing can be drawn. If anything, the decision not to grieve the letter could just as easily be explained by its giving notice of his transfer as Principal that he had already determined to be an acceptable alternative to allow his “blossoming interest” in Ms. Jahn to move forward. The testimony established that many of the opportunities provided to Ms. Jahn came from Ms. Wyatt, her mentor; Dr. Smith and Ms. Sumner, GES assistant principals; and from her peers, including her fellow grade-level teachers and those on the SITE committee. Except for the Instructional Leadership Team Summer Institute, which came after the close of the 2017- 2018 school year, and after Ms. Wyatt’s election to attend a different conference, Mr. Solz made no assignments or invitations to Ms. Jahn. Ms. Jahn earned the opportunities to advance her career. She was not “given” those opportunities by Mr. Solz or anyone else at GES. Much of the testimony critical of the “relationship” between Mr. Solz and Ms. Jahn came from employees who either could not or would not put in the work to qualify for leadership positions. They did not seek to earn degrees in Education Leadership, did not actively seek out extracurricular leadership positions, and were not elected by their peers to leadership positions, including SITE Facilitator. The evidence established that the witnesses who provided many of the statements that precipitated this proceeding were irritated by Mr. Solz for any number of reasons: that they were “angry” at Mr. Solz for being assigned to teach in a portable classroom; that Mr. Solz was monitoring their Facebook posts; that Mr. Solz used the iObservation system “against” them; that they were “formally written up” for infractions when other (non-comparable) teachers were not; or that they simply were not evaluated as highly as they believed they deserved.10 Much of the evidence provided in support of Petitioner’s case consisted of statements and testimony that were directed 10 It is not overlooked that the three primary witnesses offered by Petitioner to substantiate wrongdoing by Mr. Solz were clearly antagonistic towards him, which pre-dated anything alleged in this case. Ms. Vasquez testified that she and Mr. Solz “had a history of -- very, very hostile history,” and she “did not feel comfortable talking to Mr. Solz.” Ms. Baggett exhibited obvious animosity, feeling the Mr. Solz “was very dismissive,” and that “[p]rofessionally I don't respect his practice.” Ms. O’Brien testified that during the period from 2008 through May of 2018, “Mr. Solz and I did not see eye-to-eye most of the time.” The witnesses’s antipathy towards Mr. Solz is not a primary basis for assigning their testimony little weight. However, it does nothing to bolster their credibility. towards Mr. Solz’s previous relationships, that were imprecise and unsubstantiated gossip, or that were pure uncorroborated hearsay. The allegations that Mr. Solz “appointed” Ms. Jahn to “TEC Rep., SITE Facilitator, DAC, and Kdg. Team Leader” were either based on ignorance of the process or, more likely, a conscious misrepresentation of the criteria by which those positions are filled. As to the only allegation that had any basis in fact -- Ms. Jahn’s attendance at the Instructional Leadership Team Summer Institute -- the complaining teachers simply lacked the requisite leadership qualifications. That was not the fault of either Mr. Solz or Ms. Jahn. There was not a speck of competent, substantial evidence to establish that Mr. Solz afforded Ms. Jahn preferential treatment as compared to similarly situated employees, including training not offered or made available to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that training opportunities provided by GES administrators, including Mr. Solz, created a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.a) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [having] Jahn accompany him on at least one school related out of town trip without making the opportunity available to other teachers. This allegation has been addressed in detail herein. In addition to the fact that there was no “relationship” when Mr. Solz invited Ms. Jahn to attend the Instructional Leadership Team Summer Institute, the evidence in this case established, conclusively, that Mr. Solz did not afford Ms. Jahn preferential treatment as compared to similarly situated employees. Attendance at the conference was offered to Ms. Jahn as the only qualified attendee since Ms. Wyatt had a conflicting leadership-based conference that drew her attention, and was based on absolutely no improper motive. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz’s offer to Ms. Jahn to attend the conference (with her family) created a hostile work environment.11 Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.b) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [r]ules regarding supervision of students [being] relaxed for Jahn as compared to other teachers. In addition to the fact that there was no “relationship,” the evidence in this case established, conclusively, that rules for supervision of students were not relaxed for Ms. Jahn as compared to other teachers. The evidence demonstrates that Ms. Jahn went to various administrative offices -- primarily those of Ms. Wyatt (her mentor) and Ms. Sumner (her education leadership internship supervisor), as well as that of Dr. Smith the preceding year -- before school, at lunch, or during her planning period. It is common for intern/student teachers to earn the right to “solo” teach a class. As Ms. Jahn’s intern, Ms. Hobbs, gained in competency, she 11 On a practical note, the conference was held in June of 2018, after the conclusion of the 2017-2018 school year for teachers. By the time teachers returned to campus in the fall, Mr. Solz had been transferred from GES. If Mr. Solz was able to create a hostile work environment at GES from his post at the Department of Teaching and Learning, it would have been quite a trick. was allowed to take on more of the teaching responsibilities for Ms. Jahn’s class on her own, as was the goal. Finally, Ms. Jahn was able to leave the classroom for periods of time, which gave Ms. Hobbs valuable experience and confidence. However, the evidence establishes that Ms. Jahn did not abuse her time during those periods, but was working at necessary and requested school-related activities. The suggestion that there was some impropriety involved when Ms. Jahn left Ms. Hobbs in charge is simply not supported. Ms. Baggett complained that she was “formally written up” (by the Assistant Principal, not Mr. Solz) because she “left [her] students unsupervised.” Why she was disciplined is a matter between Ms. Baggett and the Assistant Principal. However, that disciplinary matter (which might also explain her complained-of, less-than-stellar evaluation) does not establish that Ms. Jahn violated any rules regarding supervision of students, does not establish any other teacher as a valid comparator, and does not lend support to the allegations in this case. Ms. Vasquez testified that Ms. Jahn left her class during the school day, and “made it known that she was getting her dog groomed” on one occasion, and on another occasion “she told me she was getting her hair done.” Ms. Hobbs openly scoffed at the idea, a rejection that is supported by the record. Despite the hearsay nature of Ms. Vasquez’s testimony, it might have retained some thin thread of credibility if it did not directly conflict with her written statement provided during the investigation, in which she stated: I had been made aware of, several years ago, a relationship with Jessica Scully. She was seen in [Mr. Solz’s] office quite frequently-and would talk openly about the special treatment she was getting from David. How David would allow her to leave school to run her errands. She left school to get her dog groomed and told several teachers that David knew where she was and approved it. (emphasis added). Either Mr. Solz is attracted to women with poorly-groomed dogs, or the testimony regarding Ms. Jahn’s personal off-campus errands, including dog- grooming, was a fabrication. The evidence supports the latter. There is no competent, substantial, and credible evidence to support a finding that Ms. Jahn ever left her students with inadequate supervision, that she ever left campus to perform personal errands, or that she violated any disciplinary standard regarding student supervision. There was not a shred of evidence that Mr. Solz relaxed or disregarded any rules regarding the supervision of students for Ms. Jahn as compared to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz relaxed any rules regarding supervision of students for Ms. Jahn so as to create a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.c) of the Administrative Complaint. Summary The tone of the Administrative Complaint gives the impression that Respondent and Ms. Jahn were carrying on a torrid sexual relationship from the confines of Respondent’s office, and that Mr. Solz was lavishing Ms. Jahn with perquisites as the 2017-2018 school year was ongoing. Nothing could be further from the truth. The facts show that Ms. Jahn had high professional goals, and worked hard -- on her own -- to achieve them. The suggestion that Respondent favored Ms. Jahn to advance his prurient interest in her, or that Ms. Jahn was using Respondent as a stepping stone to some higher goal are equally unsupported, and equally fallacious. The allegation that Mr. Solz engaged in harassment or discriminatory conduct which unreasonably interfered with any GES employee’s performance of their professional or work responsibilities, or with the orderly processes of education, or that he undertook any action vis-a-vis Ms. Jahn that created a hostile, intimidating, abusive, offensive, or oppressive environment is simply not supported by the facts of this case.12
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 21st day of September, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephen G. Webster, Esquire Law Office of Stephen G. Webster, LLC Suite 5 1615 Village Square Boulevard Tallahassee, Florida 32309 (eServed) Lisa M. Forbess, Program Specialist IV Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 (eServed) Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (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)
The Issue Whether Respondent violated section 1012.795(1)(b), Florida Statutes (2018), as charged in the Administrative Complaint; and, if so, the penalty that should be imposed.1 1 Respondent’s alleged conduct occurred in September 2018. The 2018 version of chapter 1012, and related statutes, was in effect at the time of the alleged conduct, and, therefore, applies to this proceeding. See Orasan v. Ag. for Health Care Admin., 668 So. 2d
Findings Of Fact Background Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator’s certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator’s Certificate 1124072. Respondent’s certificate is valid through June 30, 2024, and covers the areas of educational leadership, elementary education, English for speakers of other languages (ESOL), and reading. During the 2018-2019 school year, Respondent was employed as a reading teacher at Dr. Phillips High School (DPHS) in the Orange County School District (OCSD). Respondent has been a licensed educator since 1995 and admits to understanding that she is a “mandatory reporter” in instances where a child has been abused or where abuse is suspected. Section 1012.795(1)(b) authorizes the Education Practices Commission to discipline an educator “for knowingly failing to report actual or suspected child abuse as required in s. 1006.061 or report alleged misconduct by instructional personnel or school administrators which affects the health, safety, or welfare of a student as required in s. 1012.796.” Section 39.201, Florida Statutes (2018), requires any person who knows or has reasonable cause to suspect that a child is abused by a person responsible for the child’s welfare to immediately report the knowledge or suspicion to the Department of Children and Families (DCF) Abuse Hotline. Several OCSD policies also mandate that a teacher immediately report any suspected child abuse to the DCF Abuse Hotline. The Complaint The Complaint alleges that “[o]n or about September 11, 2018, A.C., an eleventh[-]grade female student, reported to Respondent that [she] was being physically abused by her mother, [and that] Respondent failed to timely report the suspected abuse to [DCF] as required by law.” As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(b). Evidence Adduced at the Final Hearing Respondent first met A.C. at or near the beginning of the 2018-19 school year, which commenced sometime around the latter part of August 2018. As to her initial encounter with A.C., Respondent testified as follows: Q. And when did you first meet A.C.? A. I believe she may have been absent the first few days of school, but upon her first day of entry to my classroom she asked me, when we were greeting each other at the door, do you know who I am? And I said, A.C. And she goes, well, do you know about me? And I said, no, A.C. Hi, nice to meet you. She goes, well don’t you know about my history, don’t you know anything about me? I know your son and I’m in ROTC and, well, DCF used to be here all the time in ninth and tenth grade, don’t you know anything about me? I thought you would know all about me. And I mentioned to her that I knew nothing about her except her name and her grades and welcome to my class. And I said, let me show you where you’re sitting this year. And I showed her her seat. Q. When she said, DCF used to come to school all the time, what was she talking about? A. I have no idea. I think she was telling me about her personal history. Her behavior was a little flamboyant and very attention seeking and it was very extroverted, wanting to get to know me on a personal basis. And I -- it was just a little different from what I’m used to. And but she definitely did stand out in my vision as somebody that was seeking attention. (Tr. pp. 103-104). Within seconds of meeting A.C., Respondent, by her own admission, thought of A.C. as an extreme extrovert who was prone to engage in flamboyant and attention-seeking behavior. On the morning of September 6, 2018, Ms. Shuster included Respondent on an email that was sent to several individuals regarding A.C. The email informed recipients of the need to schedule “a team meeting … in reference to [A.C.’s] sporadic attendance.” Respondent, in response to the email from Ms. Shuster, stated the following with respect to A.C.: She is extremely bright and multi-lingual. She mentioned the school had to call DCF (A4) on her several times last year because her mom is really mean. The last few absences she had ROTC commitments. I would check with them to verify. 8/24 was the ROTC field day, 9/5 was the Club Fair. She probably shouldn’t be in reading; however, she fell asleep on the FSA last year. The question may be why isn’t she getting enough sleep? I hope this helps. Although A.C. had only briefly mentioned to Respondent during their initial interaction that she had encounters with DCF during the previous school year, it is obvious that A.C.’s reference to DCF resonated with Respondent given that several days later Respondent thought the information was of such significance that it needed to be included in Respondent’s reply to the email from Ms. Shuster. As of September 6, 2018, Respondent knew that A.C.’s school attendance was sporadic; that something in A.C.’s life was causing her to not get enough sleep; and that A.C. reported having a “really mean mom” whose purported conducted resulted in several visits from DCF during the previous school year. September 11, 2018 According to Respondent, prior to the commencement of her fifth period class on September 11, 2018, she was greeting students at the doorway of her classroom when A.C. arrived. Because A.C. had recently been absent from Respondent’s class, Respondent asked A.C. “where you been.” In response to her question, A.C., according to Respondent, stated that she “got arrested and I can tell you all about it.” Respondent testified that she then told A.C. to go to her seat and “we can talk about that later.” Respondent testified that she then instructed A.C. to sit down, but A.C. continued talking and said to Respondent “I can show you pictures.” Respondent then instructed A.C. to “put [her] phone away and sit down.” A.C. complied with Respondent’s directive, but before doing so persisted in trying to show Respondent the pictures on her phone. Respondent said that she was about 20 feet from A.C. when A.C. attempted to show her the pictures. Because of the distance between her and A.C., Respondent testified that she was unable to discern what was reflected in the pictures, but she recalled that A.C. said “I can show you pictures, I can show you, you know, these bite marks.” (Pet. Ex. 18, pp. 22-23). Respondent testified that at the conclusion of the fifth period class, she told A.C. to remain in the classroom. According to Respondent, as reflected in Petitioner’s Exhibit 18, pages 18 and 19, the following events then transpired over a period of about 10 to 15 minutes: Q. Okay. So now you and A.C. are in the room. A. Yes. Q. And you say to A.C. or she says to you, what? A. I said, hey, A.C., you said you were arrested. Can you tell me about that? What’s going on? She goes, well, if you really want to know, I wanted to get it on with my boyfriend and so my mom didn’t like it, we got into it and I called the police on her and they arrested me. And I said, oh wow, A.C. I was like, why did they take you. And she goes, well, the cops said that they were calling DCF and that they found me -- that I was the one not listening to my mom. And I said, well, A.C., I can tell you this. I have a teenage daughter. She graduated from here a few years ago and, I said, I’m going to talk to you as a teacher and I’m going to talk to you as a mom. I said, as a mom, maybe try to put your foot in the other shoe. Maybe your mom doesn’t want a little A.C. running around in nine months. Did you ever think about that perspective? And she goes, no. She goes, oh I don’t want to have kids. She goes -- I said, well, are you planning on going to the military and she said no, I don’t want to do that either. And she goes, I want to do something in art, graphic arts. Create -- I’m very creative. And I said okay. Then we spoke about, you know, what else did we speak about? We spoke about, you know, trying to follow house rules so that she doesn’t get in this situation again, whatever. And she goes, yeah, yeah, I know. She goes, I’m over it. And I said, well, you know, lunch is about to end, you better hurry on. And so, then she left for lunch and then when she left I called Ms. Graves and I called Ms. Shuster. I did not get Ms. Shuster. I didn’t leave a message. Ms. Graves, I left a message. Ms. Graves called me back sixth period and when I told her, hey, A.C. reported that she got arrested, what’s going on, she goes, oh, every teacher has told me already. We know. And I said, okay, great, thanks. In addition to the above, Respondent testified that the following events also occurred during her 10 to 15-minute discussion with A.C: Q. During that period, did A.C. show you any photos? A. I don’t recall having any photo opportunities except the time that she -- when she was walking into the room trying to show me the phone from across the room. Q. Okay. So, while she is having the conversation with you during the lunch period, she didn’t try to show you the photos that she had previously tried to show you; is that correct? A. I don’t believe so. I remember I asked her about the photos and stuff like that. She goes, I can show you photos and I was like, no, I don’t want to see your photos. Because I just didn’t. A.C. testified that on September 11, 2018, she reported to Respondent’s class and informed Respondent that she had been abused by her mother. According to A.C., she showed Respondent several pictures of bruising and bite marks on her body, which A.C. attributed to having resulted from the conduct of her mother. A.C. testified that the images reflected in Petitioner’s Exhibit 4 are copies of the pictures that she showed Respondent on September 11, 2018. Bates stamped page 9 of Petitioner’s Exhibit 4 is an image that clearly shows bite marks on A.C.’s hand. A.C. testified that the bite marks reflected in this exhibit were still visible on her hand when she met with Respondent on September 11, 2018, and that she showed her injured hand to Respondent. A.C. could not recall if she showed the pictures to Respondent upon entering Respondent’s classroom or immediately following Respondent’s fifth period class. While A.C. was uncertain as to when she discussed the details of her situation with Respondent, her testimony regarding her interaction with Respondent on September 11, 2018, was without equivocation or hesitancy, she recounted the events in question with precision, and her testimony was not otherwise impeached by Respondent. A.C. was a credible witness, and her testimony is appropriately credited. September 13, 2018 Thursday, September 13, 2018, was open-house day at DPHS, and teachers were required to remain at school until 8:00 p.m. At approximately 4:30 p.m., Respondent and her colleague, Ms. Rosa Martinez-Rodriguez, were conversing in Ms. Martinez-Rodriguez’s classroom when the administrative dean, Ms. Tamie Shuster, appeared in the doorway of the classroom. According to Ms. Shuster, she needed to speak with Ms. Martinez-Rodriguez about ESOL-related matters. Ms. Shuster finished her conversation with Ms. Martinez-Rodriguez, and before exiting the classroom, she was hailed by Respondent who informed her that student A.C. reported to Respondent that she had been bitten by her mom, and that A.C. had shown her cellphone pictures of the bite marks. When asked by Ms. Shuster if she had told anyone else about A.C.’s complaint, Respondent indicated that she had not. Ms. Shuster informed Respondent that the incident involving A.C. had to be reported, and after meeting with Respondent, Ms. Shuster promptly reported the incident involving A.C. to the DCF Abuse Hotline. In the narrative section of the reporting form completed by Ms. Shuster on September 13, 2018, she noted the following: “The student [A.C.] reported to her teacher Ms. Camacho Szeto that her mother got mad at her [and] left bite marks on her.” As a follow up, Ms. Shuster, on September 14, 2018, prepared a written statement outlining the events of the previous day. In all material respects, Ms. Shuster’s written statement on September 14, 2018, is consistent with her testimony and the information that she included in the narrative section of the abuse reporting form that she prepared on September 13, 2018. Ms. Martinez-Rodriguez was in earshot of the conversation between Respondent and Ms. Shuster and testified to the following: Q. Okay. And then what did you hear during that conversation between Ms. Szeto and Ms. Shuster? A. So they were talking about, as I said, a student that they both seemed to know about. The student seemed to have a lot of absences. And I heard Ms. Szeto tell Ms. Shuster that the student had said that her parent bit her and had shown her some pictures on the phone, but that she hadn’t reported anything because she had not observed bite marks on the student in person, on her person. And she wasn’t sure, also, if it was true as -- because there was a question about whether the pictures were of the student. To my understanding. Q. Okay. So, it’s your testimony that Mrs. Szeto told Ms. Shuster that she didn’t report it to DCF because she wasn’t sure if the student was telling the truth; is that correct? A. I’m not sure who she was referring to as not reporting it. I’m not sure if it was DCF or administration. That was unclear to me. But, yes, it was clear that she said that she wasn’t sure if it was true. Q. Ms. Camacho saying she wasn’t sure if it was true. If what was true? A. What the student was alleging that her parent had bit her and that the marks were actually the student’s. (Tr. pp. 60-61) Ms. Martinez-Rodriguez, approximately two weeks after witnessing the conversation between Respondent and Ms. Shuster, prepared a “witness statement,” which reads as follows: On September 13, 2018, Ms. Camacho-Szeto visited my office. She remained here for about an hour. It was Open House day, so we had to be in school until 8 p.m. We were having a conversation about personal matters. At some point during the visit, Ms. Tamie Shuster stopped by the door. Ms. Camacho-Szeto informed her that one of her students was stating that her mom bit her and the student had shown her pictures of the bite marks on her phone. I do not recall the name of the student, nor if it was an ESOL student. Ms. Camacho-Szeto stated that she had not reported anything because she wasn’t sure if the student was saying the truth as she never saw the bite marks on the student, only pictures on her phone and she didn’t know if they were really pictures of her. Ms. Tamie Shuster said she would investigate and left. Ms. Camacho-Szeto left to get her meal before Open House began. Respondent, when recalling her conversation with Ms. Shuster on September 13, 2018, testified as follows: Q. What did you say to Ms. Shuster? A. I said, hey, Ms. Shuster, last week you sent an email about A.C. and regarding the attendance child -- that you were spearing up the Child Study Team and I needed to talk to you. I called you the other day, but you weren’t at your desk. I said, I have this girl, A.C., she’s a little bit, you know, she’s a handful, I said, but I need to tell you, she told me she was arrested and she said these things. She’s trying to show me a phone from across the room and she mentioned some bite marks. I see no evidence of bite marks. I see nothing but the behaviors that’s exhibited tell me this child needs some type of counseling or whatever… . She goes, oh, gee, thanks. Now I have to call it in. And I said, well, I don’t know, Tamie, I’m not -- I don’t see any signs of abuse here whatsoever, she just said she was arrested, but I don’t have her history. You have her history, you’re starting the Child Study Team. I said, if I call in a report to DCF, I have nothing to show except that she was arrested and they’re not going to take the report … . * * * Q. Okay. Now you said you mentioned to Ms. Shuster that A.C. said something about bite marks. A. Yes. Q. But what did you tell Ms. Shuster about what A.C. said about bite marks? A. I said, she was trying to show me a cellphone from across the room of a -- looked like an x-ray with bite mark -- not bite marks, sorry. Teeth -- like x-ray teeth. And I said, and I see no evidence here of any bite marks or anything on this child. But I was just trying to calm her down and to start my class and I’ve not spoken to her about it anymore. And I said, could you follow up with her? (Pet. Ex. 18, pp. 38-41). Ms. Shuster and Ms. Martinez-Rodriguez both testified that Respondent, when speaking with Ms. Shuster on September 11, 2018, stated that A.C. had been bitten by her mother and had shown Respondent pictures of the bite marks. Neither Ms. Shuster nor Ms. Martinez-Rodriguez testified, nor did they note in their written statements, that Respondent stated that A.C. was “trying to show Respondent pictures from across the room.” Furthermore, neither Ms. Shuster nor Ms. Martinez-Rodriguez testified that Respondent mentioned “x-ray like pictures of teeth” when discussing A.C. with Ms. Shuster. In addition to the above, Respondent’s purported statement to Ms. Shuster that she had “not spoken to her (A.C.) about it anymore,” when read in context, is in direct conflict with other testimony where Respondent states that she met with A.C. for 10 to 15 minutes after class to discuss with A.C. the situation involving A.C. and her mother. It is not entirely clear from the evidence why Respondent would not disclose to Ms. Shuster that she had met with A.C. for 10 to 15 minutes, and thus mislead Ms. Shuster about the extent of her interaction with A.C. on September 11, 2018. Also, Respondent’s testimony that she did not have an opportunity to review the pictures on A.C.’s phone during her after-class meeting with A.C. is problematic, and not worthy of belief. While it may have been reasonable under the circumstances for Respondent to forestall A.C.’s attempts to show Respondent the pictures at the beginning of the class period, it defies logic and reason that Respondent would meet with A.C. for 10 to 15 minutes after class, ask A.C. about the pictures, and then refuse to view them when given the opportunity to do so. Respondent’s evasive, misleading, and inconsistent testimony undermines her credibility to the point to where her version of the events in question cannot be believed. Dr. Knight is the principal at DPHS and testified that it is not required that an employee have actual knowledge that a child has been abused. According to Dr. Knight, employees are trained that, when dealing with issues of suspected child abuse or neglect, “it’s not your job to determine if you think it’s factual or not. You call it in and then DCF is the organization that determines whether it’s factual or not. Your job is to just report it and they take it from there.” Dr. Knight’s testimony accurately states Respondent’s obligation as a “mandatory reporter.” Findings of Ultimate Fact On September 11, 2018, A.C., who was then an eleventh-grade student, reported to Respondent that she had been physically abused by her mother. A.C., when discussing the events with Respondent, presented pictures of her injuries and also showed Respondent bite marks that were then present on A.C.’s hand. The fact that A.C. verbally informed Respondent that she was abused by her mother was, in itself, sufficient to trigger Respondent’s reporting obligation to DCF. The fact that A.C. showed Respondent pictures of injuries to her body was, in itself, sufficient to trigger Respondent’s reporting obligation to DCF. Although Respondent understood her obligation to report known or suspected child abuse to DCF, she failed to do so with respect to A.C.’s allegations of abuse. Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order that: 1) suspends Respondent’s educator’s certificate for a period of two days; 2) places her educator’s certificate on probation for a period of two years from the date of the final order, with conditions determined by the Education Practices Commission; 3) requires Respondent, during her period of probation, to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b); and, 4) pay a fine in the amount of $480.00. DONE AND ENTERED this 15th day of July, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2021. COPIES FURNISHED: Carol R. Buxton, Esquire Florida Education Association Suite 109 1516 East Hillcrest Street Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 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
