The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the notice of charges; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Board is the appropriate agency authorized to operate, control and supervise the public school system for the Dade County school district. As such, it is responsible for the discipline of teachers employed by the public schools. At all times material to the allegations of this case, Respondent, Lester Johnson, was employed as a continuing contract teacher with the Dade County public schools. Respondent began his employment in August, 1975, and remained on contract until his suspension, August 23, 1989. The Respondent completed his undergraduate studies at Bethune-Cookman College and received a masters degree in administration from Nova University. Throughout his teaching career, the Respondent has taught social studies at the high school or middle school levels. On December 11, 1984, Respondent was observed for evaluation by Lois A. Lindahl, an assistant principal at Norland Junior High School. Subsequent to that observation, Ms. Lindahl conducted a conference with the Respondent to advise him of the three areas in which he had been rated unacceptable. Those categories were: preparation and planning, classroom management, and teacher- student relationships. Specifically, the administrator outlined complaints that had been received from students and parents concerning the Respondent's behavior. Among those complaints were the following: "picking on certain students in each class; ridiculing students; looking strangely at girls; challenging students." Respondent received a written summary of the foregoing conference on December 18, 1984, and, at that time, indicated he understood the concerns and would seek to improve his performance. On February 27, 1985, John Gilbert, principal at Norland, met with Respondent to review complaints which had been received concerning his performance. At that time, Respondent was warned that the administration had received complaints that Respondent was "too familiar looking at girls." Several students had alleged that Respondent had stood behind a female student while she gave a report and "looked her up and down." Additionally, Respondent was advised that his manner of observing the girls in shorts at basketball games was inappropriate. Respondent acknowledged the comments and indicated his willingness to correct the situation. Following that conference, there were no similar complaints through the end of that school year. At the conclusion of the 1984/85 school year, Respondent received an acceptable rating and was recommended for employment for the next year. During the 1985/86 school year Respondent was employed at Highland Oaks Junior High School. Harold Blitman was principal at Highland Oaks at that time and met with Respondent regarding "rumblings" he had received concerning Respondent's treatment of students. Respondent was advised that a mutual respect with students needed to be established and that students should not be subjected to disparaging remarks. Respondent was formally observed on February 18, 1986, and, as a result, received an acceptable overall rating with a recommendation for employment on June 3, 1986. During the next school year at Highland Oaks, Respondent was observed on two dates, September 15, 1986 and January 27, 1987. As a result of those evaluations, Respondent received an overall rating of acceptable with a recommendation for employment. Respondent's performance during the 1987/88 school year deteriorated. Consequently, Respondent was given a prescription for performance improvement to correct the deficiency noted by the school administration. Specifically, Respondent was instructed to comply with School Board rules regarding the treatment of students and was cautioned regarding his conduct toward female students. Incidents of Respondent staring at female students, looking at them "up and down," and requiring females to approach him more closely than they wished to, were deemed inappropriate conduct. Respondent was advised that familiar conduct between himself and female students caused embarrassment and made them feel uncomfortable. In February, 1988, a female student, Milissa Wege, complained that Respondent had called her "scum," had grabbed her forcefully by the arm, and ejected her from the classroom. A secretary observed a red welt on Ms. Wege's arm where Respondent had purportedly grabbed her. Respondent denied grabbing Ms. Wege, but a verbal confrontation did occur between them. The exact language of that conversation is not known. In April, 1988, Respondent approached a student named Sherri Goldenberg. In addition to the conduct described in paragraph 8 which was displayed toward Ms. Goldenberg, Respondent approached Ms. Goldenberg during a movie and placed his hand on her shoulder. Respondent then rubbed her shoulder in a caressing motion which made Ms. Goldenberg very uncomfortable. Subsequent to the events with Ms. Wege and Ms. Goldenberg, an investigation was completed and resulted in a letter of reprimand being issued to Respondent. He was instructed not to touch students, not to say demeaning things to students, and not to give female students any reason to believe he had some kind of sexual interest in them as that made them uncomfortable. Consequently, Respondent was given an unacceptable evaluation in category seven, professional responsibility. In May, 1988, Respondent met with Raymond Fontana, assistant principal at Highland Oaks, regarding an incident involving Cory Smith. Cory's mother had registered a complaint against the Respondent because he had allegedly used demeaning terms ("stupid," "boy") toward her son. Respondent admitted that he had said the words but claimed that he had not intended to demean the student. Respondent was advised to refrain from such conduct in the future. During Respondent's time at Highland Oaks, Mr. Fontana had a number of conferences with him, both formally and informally, to attempt to correct Respondent's treatment of students. Mr. Fontana urged Respondent to not touch students and to cease using derogatory or demeaning language toward students. During the school year 1988/89, Respondent was observed on three dates: October 5, 1988; November 22, 1988; and November 28, 1988. On May 30, 1989, Respondent received an acceptable overall evaluation and was recommended for employment. However, in June, 1989, an incident occurred which resulted in the Respondent being recommended for suspension with termination proceedings to follow. That incident involved a student named Roscoe Phillips. Respondent's class was in the library because his usual classroom, the auditorium, was being used for an assembly. Mr. Phillips was talking and being disruptive. Consequently, Respondent moved him to another seat to limit the student's interaction with the class. Mr. Phillips' poor conduct continued. Finally, Respondent told the student to be quiet, grabbed his mouth by pinching his lips together, and shoved his head backward. Incidental to the shoving motion, Respondent stepped on Mr. Phillips' foot. Right after the incident occurred, the student reported Respondent's conduct to the office. On August 23, 1989, the Board suspended Respondent from his employment with the Dade County public schools.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order suspending the Respondent from his employment with the Dade County public school system for a period of one school year. Further, it is recommended that Respondent be required to participate in a continuing education program geared specifically to developing strategies for classroom management and the professional treatment of students. DONE and ENTERED this 27 day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1990. APPENDIX TO CASE NO. 89-4860 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE SCHOOL BOARD: Paragraphs 1 and 2 are accepted. With the exception of the last sentence of paragraph 3, that paragraph is accepted. The last sentence is rejected as hearsay. Paragraph 4 is accepted. It is not found, however, that the Board has presented sufficient evidence from which it must be concluded that Respondent caused the red marks on Ms. Wege's arm. It is accepted that she alleged that to be the case and that Respondent was counseled about it. Paragraph 5 is accepted. In the future, the Board attorney shall please refrain from such lengthy paragraphs. Paragraph 6 is accepted. The first two sentences of paragraph 7 are accepted. The remainder is rejected as irrelevant. Paragraph 8 is accepted. See, however, comment in paragraph 3 above. With regard to paragraph 9, it is accepted to the extent addressed in finding of fact paragraph 15; otherwise rejected as irrelevant, contrary to the weight of the evidence, or comment. Paragraph 10 is accepted to the extent that it correctly summarizes Mr. Blitman's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. Respondent showed a bone fide interest in improving his performance and with sufficient guidance can do so. Paragraph 11 is accepted as an accurate summary of Dr. Gray's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. See additional comment in paragraph 9 above. Paragraph 12 is rejected as contrary to the weight of the credible evidence. The weight of the evidence established that Respondent and Ms. Wege had a verbal confrontation. No finding is made regarding the alleged "grabbing" of her arm. To that extent Mr. Kennedy's testimony supports Respondent's version of the incident and has been deemed credible. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 5, and 6 are rejected as recitation of the notice of charges with argument, or contrary to the weight of the credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the admission made by Respondent to the administrator. Paragraph 9 is rejected as contrary to the weight of the credible evidence. See finding of fact paragraph 15. COPIES FURNISHED: William DuFresne DuFRESNE AND BRADLEY 2929 S.W. Third Avenue, Suite One Miami, Florida 33129 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132 Dr. Patrick Gray Assistant Superintendent Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Virginia Young (Respondent or Ms. Young) violated: section 1012.795(1)(g) Florida Statutes (being found guilty of personal conduct, which seriously reduces effectiveness as an employee of the school board); section 1012.795(1)(j) Florida Statutes (violating the Principles of Professional Conduct for the Education Profession as prescribed by the State Board of Education rules); Florida Administrative Code Rule 6A-10.081(2)(a)1. (failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety); and Florida Administrative Code Rule 6A- 10.081(3)(e) (intentionally exposing a student to unnecessary embarrassment or disparagement)1/; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Respondent holds Florida Educator Certificate 624273 in the areas of: Educational Media Specialist; English; Elementary Education; English for Speakers of Other Languages; Guidance and Counseling; Physical Education; Social Science; Business Education; Family and Consumer Science; and Exceptional Student Education. Respondent’s certification is valid through June 30, 2017. Respondent is also certified in Middle Grades Integrated Curriculum, which is valid through June 30, 2017. Respondent taught in the Polk County School District (PCSD) for eight years and retired two years ago. At all times material to these allegations, Respondent was employed as a social studies teacher at Traviss or as an elementary combination teacher at PVS in the PCSD. BATHROOM HALL PASS 2013-2014 School Year For the 2013-2014 school year, Respondent taught tenth- grade English and World History at Traviss. Her classroom was a portable building in the school’s parking lot. Although there was a bathroom in the portable, it had been disassembled and was unusable. When a student needed to use the bathroom, the student obtained a bathroom pass to leave the portable and go to another building where there was a functioning bathroom. Respondent’s policy for any student (pregnant or not) to obtain a bathroom pass was simple: the student had to sign in, find their assigned seat, write down the “SMART Board question” of the day, and go to the classroom aide (or paraprofessional) to obtain a bathroom/hall pass. Each student had an agenda book, and the aide would mark the time of the bathroom pass. If the student was gone too long, the aide would try to find them. Respondent never denied a student’s request for a bathroom pass although she had, on occasion, asked a student if they could wait “five minutes” because Respondent was starting a clip and was concerned she could not replay the clip. Respondent never signed a bathroom pass, but had her paraprofessional or classroom aide handle the passes. There was no evidence adduced by any former student, pregnant or not, who was denied a bathroom pass. E.G. testified there were “students” in her class who were pregnant and, with the assistance of counsel, she confirmed one student’s identity, A.G. However, A.G. did not testify that she was pregnant and A.G. did not testify that she was denied the opportunity to use the restroom. E.G. heard Respondent deny “those students’” request to go to the restroom on a “few occasions.” E.G.’s testimony was unpersuasive. Petitioner’s Exhibit 29 is a verbal warning with a written confirmation regarding Respondent’s alleged denial of pregnant students’ rights to use the restroom when asked. The undersigned acknowledges this warning; however, the non-hearsay testimony at hearing failed to support such a finding. INAPPROPRIATE LANGUAGE 2013-2014 School Year As part of the English curriculum, Respondent taught literature. Each year she used the novel To Kill a Mockingbird, by Harper Lee, which was on the approved reading list in her tenth-grade, English 2 class. In that novel, the “n” word is used once or twice. Respondent does not use the “n” word. E.G. and Ms. Ibarra were questioned about inappropriate language used during their class. Ms. Ibarra thought she was in Respondent’s eleventh or twelfth grade English class, yet she did not recall if the class was discussing a book or a movie when she claimed to have heard the “n” word used. E.G. knew Respondent was her English teacher, but could not recall if the class had been discussing the book when the “n” word may have been used. Both students’ testimony was vague and unpersuasive. TREE NUT ISSUE 2015-2016 School Year Respondent moved to PVS for the 2014-2015 and 2015-2016 school years. At PVS she taught grades kindergarten through fifth grade. Respondent had multiple preparations for the different classes she taught at PVS. Elementary students are young, and in addition to the virtual teaching time, each grade level is brought into the “brick and mortar” school once a month for a two-hour “face-to- face” class. This is to ensure that each PVS student is progressing appropriately and to ensure that each student is not being unduly assisted by their “learning coach,” an adult or other person. At PVS, teachers were expected to contact each student’s parent(s) prior to the school year starting. This “welcome call” was to introduce themselves, provide a course overview, and to chat about the individual student who would be in Respondent’s class. During the 2015-2016 school year, Respondent taught PVS’s first-grade virtual class in addition to other grades. S.D. was in Respondent’s first-grade class. S.D. is now an eight-year-old student residing and attending school out of Florida. While residing in Florida, S.D. was home schooled for the kindergarten school year. S.D. attended PVS as a first-grade student during the 2015-2016 school year. The following year S.D. attended PVS for second grade. S.D. has an allergy to tree nuts. Prior to the start of S.D.’s first-grade year, Respondent called and spoke with S.D.’s mother. During that telephone call, Respondent explained that she incorporated food in her classroom. At this mention, S.D.’s mother first raised S.D.’s severe tree nut and sesame seed allergy. S.D.’s mother advised Respondent that S.D. would probably stay home if the parents were told walnuts were going to be used in the face-to- face classroom exercise. S.D.’s mother offered to bring in other equivalent materials when food was to be used in the classroom. In September 2015, at the first face-to-face classroom meeting, S.D.’s parents spoke with Respondent, and reaffirmed S.D.’s tree nut allergy. S.D.’s parents renewed their offer to supply equivalent things for S.D. to use when food was to be used in the classroom curriculum. On October 6, 2015, Respondent entered school counselor Balladin’s office and noticed an EpiPen. In her discussion with Ms. Balladin, when told the EpiPen was S.D.’s, Respondent said the EpiPen could not be S.D.’s because it was an adult, expired EpiPen. Ms. Balladin directed Respondent to telephone S.D.’s mother about the EpiPen left in Ms. Balladin’s office. Respondent confirmed she spoke with S.D.’s mother as directed. Respondent recorded the conversation in the PVS computer system as “[Respondent] called LC to inform that they [S.D.’s parents] had left [S.D.’s] peanut allergy pen in Ms. Balladin’s office. Mom said she had a spare and would pick it up on Friday morning.” On December 8, 2015, S.D. and one other student were the only two students to participate in the face-to-face first- grade class at PVS. Towards the end of the class, Respondent provided each student with a “Christmas tree brownie still in the wrapper on the plate.” Respondent told the students not to eat the brownie until they checked with their respective mothers as it was close to lunch time. Respondent walked the two students to the front office area of the school. When S.D.’s mother saw S.D., she noticed that S.D. had a partially eaten brownie. S.D.’s mother noticed there was no wrapper to the brownie and she asked Respondent about it. S.D.’s mother wanted to know the brand to purchase it. Respondent admitted that she read the label of ingredients on the box before she purchased the brownie treats, and she did not think it would harm S.D. S.D.’s family left PVS to drive home, which was an hour or more away from PVS. Shortly after the family left PVS, S.D. became ill, frequently vomiting into a bucket on the way home. S.D.’s parents reported the illness to PVS. The brownie given to S.D. came from a box labeled “Christmas Tree Brownies [by] Little Debbie.” The brownies were Christmas tree shaped with green icing and small edible “candy toppers” on top. The box contained a list of more than 15 ingredients and also contained the following: ALLERGY INFORMATION: CONTAINS WHEAT, SOY, MILK, EGG. MAY ALSO BE PRESENT IN THIS PRODUCT: PEANUTS, TREE NUTS. Respondent thought the brownie was safe for S.D. It was not. Respondent initially testified that she did not receive any training from the school about how to deal with students’ allergies, but then immediately claimed she obtained allergy training three months after this December 8 event. The source of that training was unclear. The evidence regarding the tree nut allergy issue was established through clear and convincing evidence: Respondent provided a food product that contained tree nuts to S.D., a student who was known to have a tree nut allergy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of Counts 2 and 3 in the Amended Administrative Complaint, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the Education Practices Commission, and dismissing Counts 1 and 4. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed by Petitioner under a continuing contract. The Respondent, Muriel Johnson Krueger, holds Florida teaching certificate number #0367469 issued by the Florida Department of Education covering grades K through 6. The Respondent is also certified in Florida for administration and supervision, grades K through 12. She also holds a Wisconsin teaching certificate. The Respondent taught in Wisconsin for a number of years; she taught in a one-room school house, grades 1 through 5. She began teaching in Florida in 1974 at Brooksville Primary School in Hernando County, where she taught first grade for two years. She next taught first grade at Moton School Center (Moton) also in Hernando County, for four years. She received her continuing contract in 1977. In 1979, the Respondent was appointed primary specialist at Moton; she held that position until August, 1985. As primary specialist, the Respondent was not assigned to a classroom; she worked primarily with teachers and teachers' aides. She was not responsible for drawing up lesson plans, recording grades, or developing pacing schedules, as those procedures are used in the ordinary classroom. The Respondent received favorable evaluations throughout her career in the Hernando County school system, until January, 1986. However, Respondent has never received an evaluation of her performance which would support her dismissal. In March, 1985, the Respondent was diagnosed as having certain physical and psychological problems, including diabetes and atypical psychosis. The Respondent's medical conditions, including the details regarding her psychological illness, were reported to the school system by the Respondent's doctors, Dr. Renee Haney, a psychiatrist and Dr. Joanne Pegg- McNab., a psychologist. In August, 1985, two days prior to the commencement of the school year, the Respondent was notified by the Petitioner that she would be teaching third grade at Spring Hill Elementary School (Spring Hill) during the 1985-86 school year. Previously, the Respondent had been given to understand, based on representations made to her by school administrators, that she would be teaching second grade in 1985-1986. The Respondent had prepared materials for the teaching of second grade, which she was unable to use in teaching third grade. Louise Ross, principal of Spring Hill, was aware that Respondent had not been a classroom teacher for at least four years prior to Respondent coming to Spring Hill in August, 1985. Ross was aware of Respondent's treatment for psychological illness. Prior to the students' return, the Respondent worked one week at Spring Hill. During that period, Respondent attended general meetings, and although Respondent received a packet of material during this period, it did not contain any specific instruction in regard to preparing lesson plans, grading or pacing. Respondent received specific written instruction regarding the recording of grades and pacing at a later date. Respondent did not receive any specific verbal or written instructions from Ross or any other person respecting the procedures in effect at Spring Hill in regard to grading and pacing until the memorandums of September 24, 1985 and November 19, 1985 from Ross concerning grades and pacing, and the December 16, 1985 letter to Respondent from Ross setting forth Ross' concerns about Respondent's procedures in grading, pacing, and lesson plan preparation that were covered in the meeting between Ross and Respondent on December 16, 1985. On September 24, 1985, approximately one month after school opened on August 22, 1985, Ross issued a memorandum regarding the number of grades to be recorded for each subject, and the procedure for recording the grades. On November 19, 1985 Ross issued a memorandum regarding the Ginn Reading Program (pacing student in reading). Both the memorandum and the chart attached pointed out it was a "guide" and that the primary concern was for the student to master the material. There is insufficient evidence to show that Respondent received this memorandum prior to returning to work on December 16, 1985. No documents concerning the pacing in other subjects were issued to Respondent. Pacing involves setting a pace for the teacher and the student to cover the required material in a set time and yet allow the student to master the subject matter. The failure to properly pace a class usually results in the student requiring remediation in the subject matter. Although Ross collected and reviewed Respondent's lesson plan books during the beginning of the school year and prior to Respondent going on sick leave in November, 1985, Ross did not make any suggestions or criticisms concerning pacing because when she checked the lesson plan books Ross found them sufficient. Respondent was aware of the requirement of preparing lesson plans in advance, but at Moton, where she had previously taught, the requirement was to prepare three days of lesson plans in advance, not five days as was required at Spring Hill. Spring Hill required lesson plans to be ready on the Friday immediately prior to week of the lesson plans, but Ross had allowed teachers to prepare lesson plans over the week-end for the following week. Respondent was absent from school beginning November 20, 1985 through December 16, 1985 on approved sick leave. Respondent failed to prepare lesson plans and leave them for her substitute. Respondent's illness prevented her from preparing lesson plans for the period beginning November 25, 1985 and up until Respondent returned on December 16, 1985. However, the lesson plans for November 20, 21 and 22, 1985 should have been prepared prior to Respondent's illness. On December 16, 1985, the day Respondent returned from sick leave, Ross held a meeting with Respondent to advise her of certain changes in performance expected by Ross. The expected changes were the result of Ross reviewing Respondent's grade book and determining that the grades were not recorded in accordance with the September 24, 1985 memorandum, and reviewing Respondent's lesson plan books and determining that Respondent's class (an average class) was ahead of the top class in the third grade in reading and math. Respondent was advised of how to effect the changes and that compliance was expected by the beginning of the second semester. Although Respondent's third grade class was ahead of other third grade classes during the period of school prior to December 16, 1985, the student's mastery of the subject matter covered during this period was within an acceptable range, and remediation was normal. Subsequent to returning to work on December 16, 1987, and up until the Respondent took leave on March 12, 1987, the Respondent's pacing of her students was in accordance with school policy. Respondent's grade books may have shed some light on whether Respondent had properly recorded the student's grades but the grade books were not introduced into evidence. Prior to taking sick leave on November 20, 1985, the Respondent had, in addition to those grades recorded in her grade, recorded grades on sheets of paper in the back of her grade book contrary to the instructions given in the September 24, 1985 memorandum from Ross. However, Ross permitted the Respondent to record these grades in her grade book at a later time. Without knowing that it was against school policy, Respondent allowed her aides to record grades in her grade book. Subsequent to returning to work on December 16, 1987, and up until she took leave on March 12, 1986, the Respondent's recording of grades in her grade books was in substantial compliance with school policy. Although Respondent did not totally comply with the December 16, 1985 memorandum from Ross, her compliance with the memorandum satisfied Sonia Terrelonge, the third grade chairperson, who Ross had assigned the duty of working with Respondent to bring about compliance with the memorandum. Ross did not check Respondent's plan book or grade book on a regular basis as she had indicated in her memorandum of December 16, 1985 but delegated that responsibility to Terrelonge. On March 7, 1986, Respondent escorted her students to Terrelonge's portable classroom to see a movie and, since Respondent had detention duty, she picked up the students from other third grade classes on detention and returned to her portable classroom. At lunch time Respondent returned the students on detention to Terrelonge's portable classroom and escorted her students to lunch. After lunch Respondent escorted her students back to Terrelonge's portable classroom for the balance of the movie; again picked up the students on detention, and returned to her classroom. At the time scheduled for the conclusion of the movie, Respondent returned to Terrelonge's portable classroom to escort her students back to her classroom. Upon arrival at Terrelonge's classroom, Respondent discovered that her students had left earlier with either Maria Wolf or Catherine Winemiller or Jacqueline Mitchie, the other teachers having students at the movie. Although one of these three (3) teachers would have been responsible for supervising the return of Respondent's students to her classroom since Respondent was on detention duty, there is insufficient evidence to show which one had that responsibility. Upon return to her classroom Respondent observed some of her students outside the classroom unsupervised. Some of the students were running around and some were standing on a railing attempting to rescue a shoe from the roof. Respondent summoned her students into the classroom. None of the students were injured in any way. After the movie and the shoe incident the Respondent's children were "hyper". To calm them down, Respondent decided to go to the playground rather than to the scheduled special class. Respondent notified the special class teacher of this change but, without knowledge that she was required to notify Ross, failed to notify Ross of this change. This was the only special class the Respondent's student's missed while under her care during the 1985-86 school year. Other teachers took their students out on unscheduled recess when the children would not settle down. The evidence does not reveal any written policy concerning unscheduled recesses. Respondent kept blank discipline slips and omni passes in an unlocked desk drawer, and that students had on occasions filled out these slips without Respondent's knowledge. There was insufficient evidence to show that the children were under Respondent's supervision at the time the slips were taken out of the drawer and filled out. There were a number of disruptive and behavioral problem students in Respondent's class, but the number of disruptive or behavioral problem children in Respondent's class was not shown to be greater than in any other average third grade class. During the 1985-86 school year, Ross made frequent, unscheduled visits to Respondent's classroom and found Respondent's performance, including her classroom management, satisfactory, except on one (1) occasion, March 12, 1986. As a result of the shoe incident and skipping the special class, Ross called Respondent to a meeting on March 7, 1986 with Edward Poore, Assistant Superintendent, and Cathy Hogeland, Union Representative being present along with Ross and Respondent. As a result of this meeting, Ross advised Respondent to take the rest of that day off, which was Friday, and March 10, 1986 which was Monday. Respondent complied and returned to work on Tuesday, March 11, 1986. On March 11, 1986, the day Ross returned to school her students went on a field trip but Respondent was not allowed to accompany them. During the day Respondent worked on grading, grade books and planning. Also, on March 11, 1986, Ross gave Respondent a handwritten memorandum instructing her in class management, specifically addressing the supervision of students, class discipline, the following of lesson plans and attendance of students at special classes. Additionally, the memorandum instructed Respondent that teachers were not to eat lunch in the classroom and listed those areas where Respondent could eat lunch. On March 12, 1986, around noon, Respondent met with Ross, with Joanne Knight, being present as Union Representative. This meeting occurred as a result of Ross visiting Respondent's classroom and finding the students particularly disruptive and disorderly. When Respondent indicated that she could resume teaching her class that afternoon, Ross informed Respondent that she must take a leave of absence and have a complete physical examination and psychological evaluation or Ross would recommend her termination to the school board. Respondent was also informed by letter from Ross dated April 8, 1986 that her return to work would be based on the psychologist's report which should be submitted no later than May 31, 1986. Due to Ross' demands, Respondent requested leave and signed the necessary papers which had been filled out by the school board office. Respondent was put on leave without pay for the balance of the school year. Respondent resumed seeing Dr. Haney in April, 1986 but due to Dr. Haney's, or Respondent's oversight, an evaluation was not submitted until July 30, 1986. However, on July 1, 1986, Ross had recommended Respondent's dismissal to the superintendent based solely on Respondent's failure to provide the evaluation by May 31, 1986 without any further notice to Respondent other than the letter of April 8, 1986. Respondent learned of Ross's recommendation of dismissal sometime around July 16, 1986 when Ross notified her by letter. The letter also informed Respondent that this recommendation would go to the school board on August 5 1986. During Dr. Haney's treatment of Respondent in 1986, she prescribed medication for her mental condition which had no detrimental side effects on the Respondent. Dr. Haney's report of July 30, 1986 made no recommendation as to Respondent's ability to return to the classroom but left to the school system the interpretation of her findings. Dr. Arturo G. Gonzalez, Respondent's treating psychiatrist, began treating Respondent in October, 1986. Dr. Gonzalez's opinion was that while Respondent does have a mental condition, it is treatable with medication and does not affect Respondent's ability to teach. Dr. Gonzalez prescribes the same medication for Respondent as did Dr. Haney. From his observations, the Respondent takes the medication as prescribed. It was also Dr. Gonzalez's opinion that Respondent understands the need for medication. It was the opinion of Dr. Haney that Respondent better understood the need for medication after her second hospitalization in April 1986 then she had after the first hospitalization in 1985. It was the opinion of both Dr. Haney and Dr. Gonzalez that Respondent's mental condition would not prevent her from being effective in the classroom and that her presence as a teacher would not endanger the welfare of the students. Respondent was a concerned teacher, interested in her student's welfare. There is insufficient competent evidence in the record to show that Respondent had emotional outbursts in the presence of her students. There is insufficient competent evidence in the record to show that, due to Respondent's action, the students in her third grade class were deprived of minimum education experiences. Respondent substantially performed her duties as prescribed by law. There is insufficient competent evidence in the record to show that there was a constant or continuing intentional refusal on the part of Respondent to obey a direct order given by proper authority.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, School Board of Hernando County, enter a Final Order dismissing all charges filed against the Respondent, Muriel Krueger. It is further RECOMMENDED Respondent be restored to her position as a continuing contract employee of the Hernando County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 14th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2001 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 in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 3, 4, and 7. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 16 as clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 17 as clarified. Adopted in Finding of Fact 17 as clarified. Adopted in Findings of Fact 11 and 12 as clarified. Adopted in Finding of Fact 20 as clarified. Adopted in Finding of Fact 20. 11-13. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 11, 12 and 13. Adopted in Finding of Fact 14. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraph 15. Adopted in Finding of Fact 23 except for the last clause which is rejected as not supported by substantial competent evidence in the record. 17-19. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 17, 18 and 19. Rejected as not supported by substantial competent evidence in the record, except for the one occasion on March 12, 1986 which would not be described as a chaotic condition. That classroom management was discussed with Respondent is adopted in Findings of Fact 27 and 29. Rejected as not supported by substantial competent evidence in the record. That students took discipline slips and filled them out is adopted in Finding of Fact 24, the balance of paragraph 23 is rejected as not supported by substantial competent evidence in the record. 24-27. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 24, 25, 26, and 27. Adopted in Findings of Fact 6, 31, 32, 33 and 34. Rejected as not being relevant or material. Rejected as not being relevant or material because that was Dr. Haney's provisional diagnosis which was changed when she made her final diagnosis. The first sentence of paragraph 31 is adopted in Findings of Fact 3 and 4. The balance of paragraph 31 is rejected as not being relevant or material in that although Respondent admitted being acquainted with those school board policies there was credible evidence that Respondent was not aware at the beginning of the school year of Ross' or the Superintendent's specific instruction in regard to maintaining attendance records, grade books, etc. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 8, 10 and 11. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 20. Adopted in Finding of Fact 18. Adopted in Finding of Fact 21. Adopted in Finding of Fact 13. Adopted in Findings of Fact 20 and 21. 20.-21. Adopted in Finding of Fact 22 as clarified. Rejected as not being a finding of fact but only a restatement of testimony. Adopted in Finding of Fact 24. Adopted in Finding of Fact 22. 25.-26. Adopted in Finding of Fact 23. Adopted in Finding of Fact 25 but clarified. Adopted in Finding of Fact 27 but clarified. Adopted in Findings of Fact 28 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30 but clarified. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 33. Adopted in Findings of Fact 34 and 35 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37 but clarified. Adopted in Finding of Fact 35 but clarified. Adopted in Finding of Fact 5. COPIES FURNISHED: Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 34601 Susan E. Hicks, Esquire Post Office Drawer 520337 Miami, Florida 33152 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32300 James K. Austin, Ed.D. Superintendent of Schools Hernando County 919 U.S. Highway 41 North Brooksville, Florida 33512-2997
The Issue This case involves the issue of whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined for misconduct with female students as more specifically alleged in the petitions for dismissal and for revocation of Respondent's teaching certificate. Prior to the formal hearing, Case Nos. 83-1147 and 83-2050 were consolidated for all purposes. At the formal hearing, the Petitioners called as witnesses the Respondent, John Hayes, Peter David Cavari, Frank P. Scruggs, Paul Woodall, Tracy C. Wynn, Melissa Nichols, Gina Ryder Gina Ferracano, Angela Jacobs, Lori M. Stamos, Jeffrey A. deCook, Debbie DeFilice, Sue Fortaleza, and Dr. Benjamin F. Stephensen. Petitioners also offered the deposition of Sonya Straubinger, who was unavailable to testify at the formal hearing. That deposition is admitted and was considered as a part of the evidence in these proceedings. Prior to hearing the parties entered into a prehearing stipulation and that stipulation was admitted as joint Exhibit 1. The Petitioners offered and had admitted Exhibits 1-8. Exhibits 9, 10 and 11 were made a part of the record in order to demonstrate the unavailability of Sonya Straubinger. The deposition of of Sonya Straubinger is admitted as Petitioners' Exhibit 12. The Respondent testified on his own behalf and called as witnesses Willie Allen, Marion Ferwerda, James Pullen, Scott A. Hoffman, Robert Lamby, Lexie Wilkes, Kenneth R. Black, Jr., Kevin Ryer, Timothy A. Hassett, Kent Schaeffer, Keith Schaeffer, Paul Kruse, and Charles Law. The Respondent offered and had admitted 10 exhibits. Counsel for each of the Petitioners filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondent, John Hayes, is an instructional employee of the School Board of Broward County, Florida, holding a continuing contract of employment as a classroom teacher and is assigned as a teacher at Stranahan High School. He has been been a classroom teacher in industrial arts for fifteen years. Respondent holds teaching Certificate No. 262317, issued by the Department of Education for the State of Florida. This certificate covers the areas of industrial arts and expires June 30, 1984. During the 1982-83 school year, the Respondent was assigned as a teacher of industrial arts at Stranahan High School. Respondent taught woodworking to those students whose last names began with the letters "A" through "G." In each of his woodworking classes, the Respondent had both male and female students. On December 8, 1982, two of Mr. Hayes' female students went to an administrative assistant, Peter Cavari, and asked that they be moved from Mr. Hayes' woodworking class. They stated that "things" were happening in the class but that they would rather not say anything about the specific occurrences. Their request to change was denied. The two girls were Debbie Defilice and Sue Fortaleza. Subsequent to this denial, Debbie Defilice and her mother met with Mr. Frank Scruggs, the administrative assistant in charge of students A through G at Stranahan High School and again requested that Debbie be removed from Mr. Hayes' class. Mr. Paul Woodall, the principal at Stranahan High School, was apprised of these complaints and requests for change and as a result of a preliminary investigation by Mr. Woodall, the matter was turned over to internal security of the School Board of Broward County. Thereafter, the Respondents was suspended from all further teaching duties. During the 1982-83 school year, Tracy Colleen Wynn was a senior at Stranahan Senior High School and was assigned to Respondent's 3rd period Woods I Class. On two different occasions during that school year, the Respondent kissed Ms. Wynn on the cheek out of the presence of other persons. The first incident occurred the day just prior to the Thanksgiving break as Ms. Wynn was preparing to leave Woods Class at the end of 3rd period. As Ms. Nynn was leaving class, the Respondent wished her a good and safe Thanksgiving and then kissed her on the cheek. She had no reaction to the kiss. She had not been kissed on the cheek by any other teachers. The second incident occurred near the end of a woods class when Ms. Wynn was working on a set of bookcases. She could not recall the specific date of this incident. At the end of this particular class period, Ms. Wynn had not finished gluing the shelves of the bookcase she was working on. The Respondent stated that he would glue the shelves for her and kissed her on the cheek. She then left the class. There were no other students present in the classroom when this occurred. On one other occasion during her junior year at Stranahan, Ms. Wynn was kissed on the cheek by the Respondent. On that occasion, Ms. Wynn had fallen in the parking lot and injured her knee and the Respondent helped her into his classroom. At the time she fell, she was on her way to Woods Class. Once inside the classroom, the Respondent, accompanied by Ms. Wynn, went into a small room adjacent to the classroom to call the office and to call Ms. Wynn's mother. Mr. Hayes made the two calls and then kissed Ms. Wynn on the cheek. A short time later Ms. Wynn's mother arrived and took her home. When she fell in the parking lot, Ms. Wynn was very upset and Mr. Hayes had tried to console her and calm her down. During the school year 1982-83, Melissa Nichols, a junior at Stranahan High School, was a student in Mr. Hayes' Woods Class. On one occasion, early in the school year, while Ms. Nichols was working at the lathe, the Respondent came up behind her and put his arms around her to demonstrate use of the lathe. As Ms. Nichols was using the lathe, the Respondent began patting the sides of her rib cage and patted her all the way down to her hips. He then held her hips and said, "I didn't realize what hips you had." Ms. Nichols then moved away. Once during a test, Mr. Hayes walked up behind Ms. Nichols and tickled her upper rib cage. This startled her and caused her to fall off the stool she was seated on. During that same test, Mr. Hayes stood behind Ms. Nichols and leaned forward looking over her shoulder and pressing his groin area against her back. On another occasion, Ms. Nichols had worn a lace blouse to school and the top button would not stay buttoned. She asked Mr. Hayes for a safety pin for her blouse and he stated, "Don't we get a look first." This was said in a joking manner. Another incident occurred during Woods Class on a day when Ms. Nichols was wearing a shop apron. Mr. Hayes grabbed the front of her apron and lifted her off the floor momentarily. Gina Rider was a senior at Stranahan High School during the 1982-83 school year. Ms. Rider was also a student in Mr. Hayes' Woods Class. During one class, Mr. Hayes came up behind Ms. Rider while she was working on the lathe. He put his arms around her and showed her how to do a particular thing on the lathe. She did something on the lathe which Mr. Hayes thought was good and he then kissed her hand. After she finished working on the lathe, Ms. Rider was just standing around and Mr. Hayes walked up behind her, grabbed her around the waist with his hands, and picked her up off the floor. During the 1982-83 school year, Lisa Champion was a student in Mr. Hayes' 6th period Woods Class. Ms. Champion had a habit of sticking out her tongue and once after Mr. Hayes had spoken to her about something, she stuck out her tongue and Mr. Hayes touched her tongue with his tongue. On four or five occasions, the specific dates being unknown, Mr. Hayes stood behind Lisa while she worked on the lathe. Each time he put his arms around her to demonstrate something on the lathe, his arms were around her in such a way that they came in contact with her breasts. Gina Ferracano was a student in Mr. Hayes' 2nd period Woods Class at Stranahan High School during the 1982-83 school year. On several occasions during class, Mr. Hayes patted her rear with the palm of his hand. Mr. Hayes also stood behind Gina and put his arms around her while demonstrating the use of the lathe. His arms did not come in contact with her breasts. On one occasion, Gina was trying to hang a broom up and could not reach high enough to do it. Mr. Hayes walked up behind her and grabbed her on her rib cage just below her breast and lifted her up to put the broom away. From August 1982, to December, 1882, Lori Stamos was a student in Mr. Hayes' 5th period Woods Class. At the time she was a senior at Stranahan High School. On several occasions, Mr. Hayes tickled the upper part of her rib cage. Each time this occurred, she just asked him to stop. Once or twice, Mr. Hayes hit her "butt" with the palm of his hand. On some occasions, Mr. Hayes commented to Lori what a nice figure she had. One particular day, at the end of the first 9 week period, Lori was in the backroom on the west side of the woodworking laboratory grading papers for Mr. Hayes. There were no other students present. Mr. Hayes came into the backroom and told her she was doing a good job and then kissed her on the cheek. Mr. Hayes instructed Lori on the equipment in Woods Class. Be would stand in back of her while instructing her on the lathe and would put his arms around her. His arms did not come into contact with any particular part of her body. Debbie DeFilice was a senior at Stranahan High School during the 1982- 83 school year and was a student in Respondent's 6th period Woods Class. Sue Fortaleza and Lisa Champion were also in this class. Once during class, Mr. Hayes walked up behind Debbie and picked her up. He picked her up by placing his hands on each side of Debbie's rib cage. His hands also came in contact with her breast. On another occasion, the Respondent leaned against her during an exam. In leaning over her and looking over her shoulder, the Respondent's groin area pressed against Debbie's back. Her examination could have been viewed from the side rather than over Debbie's shoulder. During one of the classes, Sue Fortaleza was complaining to Debbie DeFilice that she felt she was fat and needed to lose weight. This conversation was taking place near Mr. Hayes' desk. Mr. Hayes overheard the conversation and told Debbie DeFilice that he preferred Sue's "butt" over hers but that her breasts made up for it. The original conversation had not been directed at Mr. Hayes and the girls made no comment in response to his statement. No other teacher had ever made that type of comment to them. As Debbie and Susan walked away, the Respondent patted Sue on the "butt" with the palms of both hands. Susan Fortaleza was a senior at Stranahan High School during the 1982- 83 school year and was a student in Mr. Hayes' 6th period woodworking class. In December 1982, Susan requested a change from Mr. Hayes' woodworking class. This request was made because of some incidents involving Mr. Hayes. Once while sitting on a stool in class, Mr. Hayes placed the palms of his hands on her buttocks. On another occasion, Susan was seated on Mr. Hayes' stool grading papers. Mr. Hayes grabbed her rib cage just below her breasts and picked her up off of the stool. His hands came into contact with her breasts. During an exam, Susan was seated on a stool at one of the workbenches taking the exam. Mr. Hayes came up behind her and leaned against her with his groin or genital area coming in contact with her back. There was room on either side of her for Mr. Hayes to walk up and look at her exam. During the 1982-83 school term, Sonya Straubinger was a student at Stranahan High School and was enrolled in Mr. Hayes' 5th period Woods Class. On two or three occasions, between August 20, 1982, and December 1982, Sonya was late for Woods Class and when she entered the classroom, Mr. Hayes patted her on the "butt" and commented that she was late. He did this a joking manner. On one occasion, Mr. Hayes, while showing Sonya how to take roll, sat her on his lap. Once, while Sonya was standing in the finishing room, Mr. Hayes picked her up from behind. There was no apparent reason for him to pick her up and when he lifted her his arms came in contact with the lower part of her breasts. Although she did not approve of the physical contact, Sonya considers Mr. Hayes an excellent teacher and a nice man. While teaching students to use the lathe, Mr. Hayes instructed by standing behind or slightly to one side of the student and placed his arms around the student with his hands holding the student's hands as the tool was used. This procedure was used with male and female students. Respondent is considered by his students, peers, and supervisors to be an excellent instructor. He is very safety conscious and designed the present safety features and layout of the woodworking laboratory at Stranahan High School. Improper physical contact with female students by a male teacher impairs the effectiveness of the teacher to instruct those students.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is,
Findings Of Fact A review of Exhibit 1, the personnel record of Respondent, discloses that Respondent has been employed by the Pinellas County School Board since 1959; that he has taught science at various junior high schools and middle schools from 1958 to present; that deficiencies in maintaining discipline in his classes, judgment, maturity, and planning have been noted on his evaluation reports throughout that period; his evaluation reports have generally been below average; after extending his probationary period he was granted continuing contract status in 1971; and his evaluations have been unsatisfactory for the last three years. All of the witnesses called by Petitioner have been associated with Respondent in the school system and all considered his performance as a classroom teacher unsatisfactory. Specific incidents observed by the witnesses which led to their evaluation an characterization of Respondent include: Children in Respondents classroom intentionally hyperventilating and passing out while Respondent was in the room presumably continuing his instruction. Children in Respondent's classes more disorderly, rowdy, and noisy than in any other class. Noises from Respondent's classes of sufficient volume to disturb adjacent classes. Respondent continuing his reading of a lesson in a voice that could be heard only a few feet away while the students in other parts of the classroom talked, fought, played games and otherwise ignored Respondent. No rational grading system adopted or used by Respondent. This resulted in numerous complaints from both students and their parents respecting the grades assigned. In this respect more complaints were registered against Respondent's grades that any other teacher. Respondent often sent children to the principal for minor disciplinary problems while he ignored much more serous misconduct. Lack of coherence in Respondent's instruction in jumping from one subject to another with no plan and no continuity. Children in Respondents class recognized his inability to control the class and evinced lack of respect for Respondent. Despite numerous counselling sessions and help, Respondent never produced adequate lesson plans for his classes. Lack of plans led to less continuity in the lessons and a lower teaching level. A combination of lack of discipline, lack of proper planning and inconsistent reaction to the students in his class led to the inevitable conclusion that the students in Respondent's classes were not learning those things he was supposed to teach them. On one or more occasions Respondent disobeyed the orders of his principal to come to his office to discuss problems. respondent refused to be counselled without a union representative present. Following nearly three years of counselling, guidance and attempts to assist Respondent to improve his effectiveness at Fitzgerald Middle School, the school authorities apparently determined that Respondent should be terminated and requested an evaluation of Respondent by a Professional Practices Council Evaluator. Respondent was advised some two weeks before his arrival that an evaluator would come to observe Respondent conduct his classes and that the evaluator would submit a report following the observation. Pursuant thereto the evaluator spent February 27, 28, and March 1, 1979 observing Respondent conduct his classes. His report of this evaluation comprises Exhibit 11. In this report Respondent was evaluated as unsatisfactory in the following duties expected of a teacher: Grade record book from which students grades are taken was improperly kept and contained insufficient information to make a rational determination of the grade actually earned by each student. Respondent made no distinction among his diverse students and consequently gave them all the same assignments. Respondents lack of control over the classroom was so inadequate that an incredible amount of cheating was going on. Answers to questions were exchanged orally between students during tests and this was ignored by Respondent. As a result there was no incentive for learning and little, if any, learning took place in Respondents classes. Classroom management and discipline was practically non-existent. As stated in Exhibit 11: "Mr. Barlow cannot discipline his students well enough to get their cooperation to carry out what would otherwise be an almost acceptable (1.e. needing some definite improvement) program. Thereafter the evaluator submitted three pages of specific incidents occurring in Respondent's classes on February 27, and three more pages of incidents which generally support the conclusion that in such an atmosphere either teaching or learning is, for all intents and purposes, impossible. Planning of lessons by Respondent, both short and long-term, was so inadequate that these plans across school year 1978-79 were described to "violate, more than follow, those guidelines" [established for lesson plans]. Instead of having self-confidence and self-sufficiency in exercising authority Respondent "radiates insecurity in the classroom". Following these unsatisfactory reports the evaluator concludes that Respondent's students are being deprived of a vital part of their education. This conclusion is supported by the testimony of all other witnesses. Even those witnesses who testified on behalf of Respondent acknowledged that Respondent did not maintain order and discipline in his classes. Even those witnesses who testified on behalf of Respondent acknowledged that Respondent did not maintain order and discipline in his classes. Testifying in his own behalf Respondent did not deny that his classes were disorderly and unruly, or that the incident of the children in his class hyperventilating and passing out occurred. He contends that if he had more administrative help he could operate effectively in a classroom. His problems at Fitzgerald Middle School he blames largely on the Assistant Principal in charge of the seventh grade teachers, who, while frequently visiting Respondent's classes, undermined him. Other than Respondent's testimony no credible evidence was submitted that the Assistant Principal was doing anything other than trying to help Respondent improve his performance.
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 the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
