The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The basic issue in this case is whether there exists "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to terminate the professional services contract between the School Board of Gadsden County, Florida, and John C. Buckley. The School Board seeks such a termination on the basis of allegations that John C. Buckley engaged in various forms of inappropriate conduct during the course of a science fair trip. Briefly summarized, the allegations are that John C. Buckley (a) permitted students to smoke cigarettes, (b) purchased alcoholic beverages in the presence of a student, (c) consumed alcoholic beverages in the presence of students, (d) provided alcoholic beverages to students and permitted them to consume such beverages, and (e) inappropriately touched one or more female students. At the hearing, the parties presented the testimony of several witnesses, including the testimony of Respondent. Following the hearing, a transcript of the proceedings was filed and all parties thereafter filed timely proposed recommended orders. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. All findings of fact prepared by the parties are specifically addressed in the appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the evidence received at the hearing and the admissions of the Respondent, I make the following findings of fact: At all times material, the Respondent, John C. Buckley, was employed as a science teacher at the James A. Shanks High School in Gadsden County, Florida. At all times material, the Respondent was employed under a professional service contract as defined in Section 231.36(3)(a), Florida Statutes (1987). The Respondent accompanied a group of Gadsden County high school students to Jacksonville to attend a science fair on April 13, 1988, through April 16, 1988. There were three other adults present during the trip; Oscar Rogers, a school bus driver employed by the Gadsden County School Board, Cynthia B. Clark, a science teacher from Carter Parramore Middle School, and Betty Williams, a chaperon. On the way to Jacksonville, the following three female students rode with the Respondent in his personal car: Ginger Godwin (10th grade), Twanna Scott (12th grade), and Yvonne Dunson (12th grade). The other students and adults rode in a school bus. During the drive to Jacksonville, two of the students in Respondent's car were smoking cigarettes. The Respondent knew these two students intended to smoke in his car and he did not prohibit either student from smoking in his car. During the evening of April 13, 1988, the Respondent drove in his car to a liquor store in Jacksonville, where he purchased some beer, some bottled wine coolers, and a small bottle of bourbon. Twanna Scott, a student, rode in Respondent's car to and from the liquor store, but she did not get out of the car when the Respondent went into the liquor store. During the evening of April 13, 1988, the Respondent consumed several beers, probably three or four. Some of the Respondent's consumption of beer took place in the presence of some of the students, specifically at a time when the students and the adults on the trip were eating pizza for their evening meal. The Respondent did not, on April 13, 1988, or any other time, provide any alcoholic beverages to any of the students, nor did he permit any of the students to consume alcohol. Later, on the evening of April 13, 1988, the Respondent entered the motel room in which Ginger Godwin, Twanna Scott, Yvonne Dunson, and Precious Anderson were staying. At the time the Respondent entered the room, Godwin, Scott, and Dunson, and several other people were also in the room. During the time the Respondent was in the room a door that connected to the next room was open. The next room was the room in which Cynthia B. Clark, a teacher, was staying with two other female students. While the Respondent was in the room, Twanna Scott complained of a stiff back and the Respondent sat on the edge of the bed and gave Twanna Scott a brief back rub. At the time of the back rub, the only other people in the room were Ginger Godwin and Yvonne Dunson. Following the back rub, the Respondent left the room. The Respondent did not touch any part of Twanna Scott's body other than her back. The Respondent did not touch either of the other female students who were in the room. On the evening of April 14, 1988, while the Respondent was away from the motel with some of the students, Ginger Godwin, Twanna Scott, and Yvonne Dunson told Cynthia B. Clark, one of the teachers, that they wanted to spend some time watching television in the motel room of some insurance salesmen they had recently met at the motel. Mrs. Clark agreed to let them do so, subject to some ground rules which included: the door to the salesmen's motel room had to remain open, the curtains had to remain open, and the girls had to check with Mrs. Clark every 30 minutes or so. At about 9:45 p.m. during the evening of April 14, 1988, Mrs. Clark walked by the salesmen's room and observed Ginger Godwin drinking a beer. Mrs. Clark told Ginger Godwin that she did not approve of such conduct and Ginger Godwin acted indifferent to the disapproval. Mrs. Clark told the girls that they needed to be back in their own rooms by 10:30 p.m. Sometime between 10:30 and 10:45 p.m., Mrs. Clark returned to the salesmen's room and tried to get the three girls to return to their own room. They essentially ignored her and remained in the salesmen's room. The Respondent returned to the motel sometime shortly after 11:00 p.m., at which time Mrs. Clark told him about the three girls in the insurance salesmen's room. Mrs. Clark and the Respondent then went to the salesmen's room and the Respondent told the girls they had to return to their own room. After some argument, the three girls eventually complied. Later in the evening the salesmen were down tapping on the window of the girls' motel room and the girls were talking to the salesmen through an open window. When this was brought to the Respondent's attention, he went to the girls' room, told them they should go to bed and tried to get the salesmen to leave. The three girls and the insurance salesmen all rebuffed the Respondent's efforts, and the Respondent ultimately had to call the motel security guard. At about that time, Ginger Godwin got into a heated argument with the Respondent, during the course of which there was some yelling and shouting back and forth. Apparently there were further heated arguments the next day about the salesmen. At some point in the arguments, Ginger Godwin threatened to retaliate against the Respondent as a result of his interference with the relationship between the three girls and the insurance salesmen. The threats made to the Respondent included statements such as, "I know how to get you," "I'm going to take care of your job Monday," and "I'll get even with you and I'll take care of you Monday when I get back." Upon returning home, Ginger Godwin, Yvonne Dunson, and Twanna Scott reported to school authorities that the Respondent had engaged in improper conduct during the science fair trip. They accused the Respondent of, among other things, improper sexual touching of Dunson and Scott. The allegations of improper sexual touching were false. School rules prohibit the use of tobacco substances at school campuses, activities, or field trips. School rules prohibit the consumption of alcoholic beverages on School Board premises, at school activities, and on school field trips. School rules prohibit the consumption of alcoholic beverages by teachers in the presence of students, during school field trips. When supervising field trips, teachers have 24-hour supervisory responsibility over the students on the field trip. The Respondent had been previously warned to curtail his smoking in front of students by Janey DuPont, an Administrator employed by the Petitioner. Respondent had also been specifically warned by Janey DuPont not to consume alcoholic beverages in the presence of students. The Respondent knew or should have known that he was not supposed to be drinking alcoholic beverages in the presence of students under his supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative charges against the Respondent Buckley be dismissed and that the Respondent be reinstated as a professional service contract teacher with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all findings of fact proposed by the parties to this case. Findings proposed by Petitioner: Paragraph 1: Accepted Paragraphs 2 and 3: Rejected as unnecessary recitation of procedural details. (Findings have been made incorporating the substance of the conduct admitted by the Respondent.) Paragraphs 4 and 5: Rejected as unnecessary. Paragraphs 6, 7, 8, 9, and 10: Accepted. Paragraph 11: Rejected as irrelevant to the issues in this case. Paragraphs 12, 13, 14, 15, 16, and 17; Accepted. Paragraphs 18 and 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, and 23: Accepted, with some unnecessary details omitted. Paragraphs 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Covered in preliminary statement. Paragraph 29: Accepted. Paragraphs 30 and 31: Rejected because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Specifically, there is no persuasive evidence that the Respondent made several attempts to bite Twanna Scott on her ear. Ms. Scott's testimony to that effort is unconvincing. The Respondent's denial is accepted. Paragraphs 32, 33, 34, and 35: Rejected as not supported by credible evidence. I reject as unworthy of belief the testimony that the Respondent provided alcoholic beverages to three students. I accept the Respondent's denial that he provided alcoholic beverages to any student. Paragraph 36: Rejected as irrelevant because the Respondent has not been charged with this conduct and, in any event, there is no evidence that Respondent consumed sufficient alcohol to impair his ability to drive safely. Paragraph 37: First fourteen words rejected as contrary to the greater weight of the evidence; I have rejected the testimony that Respondent provided alcoholic beverages to any students. Next seven words rejected as irrelevant and unnecessary because there has been no showing that the Respondent consumed sufficient alcoholic beverages to impair his judgment. The remainder of this paragraph is accepted. Paragraph 38: First sentence rejected as vague and inaccurate; the subject student was wearing a robe and was on the bed watching television. Second sentence accepted in substance with a few clarifying details. Paragraphs 39, 40, and 41: Rejected as contrary to the greater weight of the evidence. In view of all the circumstances, the Respondent's denials and the Respondent's version of what occurred is more believable than the testimony of Yvonne Dunson, Twanna Scott, and Ginger Godwin. Yvonne Dunson, Twanna Scott, and Ginger Godwin are not credible witnesses. Paragraph 42: Rejected as inaccurate; the girls made a report when they returned, but it was a false report. Findings proposed by the Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance. Paragraphs 7 and 8: Rejected as constituting summaries of testimony rather than proposed findings of fact. Further, the subject matter of these paragraphs is irrelevant because in the hand holding in the car is not the "inappropriate" touching with which the Respondent has been charged. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraphs 11, 12, 13, and 14: I have not made any findings on the subject matter addressed by these paragraphs because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: First sentence accepted. Second sentence rejected as irrelevant. Paragraphs 17 and 18: Rejected as constituting summaries of testimony rather than proposed findings of fact. On this subject, I have found that the greater weight of the evidence is consistent with the Respondent's denial. Paragraph 19: Accepted in substance. Paragraphs 20, 21, and 22: Rejected as constituting summaries of testimony rather than proposed findings of fact. (The summarized testimony has not been credited.) Paragraph 23: First sentence accepted. Second sentence rejected as not supported by persuasive evidence; I seriously doubt that Ginger Godwin told the other two girls anything about any "incidents" on Wednesday night. I believe the three girls (Ginger Godwin, Twanna Scott, and Yvonne Dunson) fabricated their stories at a later date. Paragraph 24: Rejected as constituting a summary of testimony rather than proposed findings of fact. I have, however, made findings of fact consistent with the Respondent's version of this incident. Paragraph 25: Accepted in substance. Paragraph 26: Rejected as subordinate and unnecessary details. Paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37: Accepted in substance. COPIES FURNISHED TO: CLAUDE B. ARRINGTON, ESQUIRE RUDEN, BARNETT, MCCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 101 NORTH MONROE STREET MONROE-PARK TOWER, SUITE 1010 TALLAHASSEE, FLORIDA 32301 PHILIP J. PADOVANO, ESQUIRE POST OFFICE BOX 873 TALLAHASSEE, FLORIDA 32302 ROBERT H. BRYANT SUPERINTENDENT OF SCHOOLS SCHOOL BOARD OF GADSDEN COUNTY POST OFFICE BOX 818 QUINCY, FLORIDA 32351
The Issue Whether Petitioner, St. Lucie County School Board (Petitioner or School Board) has just cause to discipline Wendy Portillo's employment based on the conduct alleged in the “Statement of Charges and Petition for One Year Suspension Without Pay and Return to Annual Contract” and the appropriate penalties, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in St. Lucie County, Florida. Petitioner has entered into individual contracts and collective bargaining agreements with the teachers it employs and has adopted rules and policies that control the activities of its teaching professionals. At all times relevant to this proceeding, Respondent was a teacher employed by Petitioner pursuant to a professional services contract and assigned to teach kindergarten at Morningside. On May 21, 2008, Respondent was teaching kindergarten in her classroom at Morningside. The door to Respondent’s classroom is across a hall from the door of the school office. Typically, kindergarten students are five or six years old. Student 1, a male, was one of 17 students in Respondent’s class on May 21, 2008. Student 1 was assigned to Respondent’s class in January 2008. Shortly after his placement in her class, Respondent asked Mr. Graff to help her with Student 1 because of Student 1’s behavior. Mr. Graff works in Morningside’s fourth grade alpha class. The alpha program is designed to identify and assist at-risk third grade students who are having difficulties at home or at school. Mr. Graff has the assistance of a full- time counselor and a full-time paraprofessional. Mr. Graff agreed to help with Student 1 as needed. Student 1 came to Mr. Graff’s classroom on approximately 12 occasions between January and May 21, 2008. In mid-February 2008, Respondent requested a Child Study Team for Student 1, which is the first step in determining whether a student meets the eligibility requirements for services from Petitioner’s Exceptional Student Education (ESE) program. This development is part of an on-going process.3 The Child Study Team, of which Respondent was a member, developed strategies designed to redirect Student 1’s behavior. One of the strategies was a reward system utilizing tokens. On May 21, 2008, Respondent’s kindergarten class began at 8:20 a.m. At 9:00 a.m. Respondent’s kindergarten class, including Student 1, went to a performance by the fifth grade that ended at approximately 9:45 a.m. The students returned to Respondent’s classroom at approximately 10:00 a.m. At approximately 10:30 a.m., while she was teaching her class, Respondent observed that Student 1 was off-task and was being disruptive to the other students by flipping crayons at his classmates and crawling under a table. Student 1 pushed up on the table, where other students were trying to work. Respondent attempted to redirect Student 1, but she could not do so. Respondent summoned Officer Black (the school resource officer) to come to her room. Officer Black assisted in getting Student 1 out from under a table and took him to the office. After Officer Black had escorted Student 1 to the school office, Ms. Gascoigne (the assistant principal) counseled Student 1 as to appropriate versus inappropriate behavior. Student 1 told Ms. Gascoigne that he realized what he had done was wrong and that he wanted to say to Respondent that he was sorry. After keeping Student 1 in the office for approximately 15 minutes, Ms. Gascoigne sent Student 1 back to Respondent’s classroom. There was a dispute in the record as to whether Respondent sent a written referral to the office when Officer Black escorted Student 1 to the office at approximately 10:30 a.m. The office did receive a written referral from Respondent on May 21, 2008, pertaining to Student 1’s misbehavior. The inference was that pursuant to School Board Policy 5.33, which pertains to removal of students from a classroom as opposed to a disciplinary referral of a student for misbehaving in class, the office personnel should have detained Student 1 for a longer period of time than 15 minutes if Respondent had sent a written referral with him. The greater weight of the credible evidence established that School Board Policy 5.33 is inapplicable due to Student 1’s level of disruption. Moreover, the greater weight of the evidence established that Ms. Gasciogne did not receive the written referral until the afternoon of May 21, 2008, after the occurrence of the events at issue in this proceeding. When she had Officer Black take Student 1 to the office at approximately 10:30 a.m. on May 21, 2008, Respondent did not ask Ms. Gascoigne or anyone else in the office to detain Student 1 for a particular length of time. When Student 1 returned to her classroom, Respondent was in a meeting area where the students were gathered for group instruction. Respondent asked Student 1 why he had returned to the classroom. Student 1 responded to the effect that Ms. Gascoigne had sent him back. Referring to herself and to the other students in her class, Respondent responded to the effect that, “I don’t know if we are ready to have you back at this time.” After making that statement, Respondent directed Student 1 to join her in front of his classmates. Respondent asked Student 1 why he had done the things he had done earlier that morning. Student 1 shrugged his shoulders. Respondent told Student 1 that shrugging his shoulders was not an answer and that he should use his words. Three or four students began saying things about how Student 1 had behaved. Respondent asked Student 1 to listen to his classmates and asked him how what they were saying made him feel. Referring to herself and to the other students, Respondent stated that she did not think we are ready for you to come back at this time. Respondent then announced that she was going to poll the class as to whether Student 1 could rejoin them. Respondent explained to the class that a poll was like taking a vote. Respondent asked each of Student 1’s classmates to verbally vote yes or no whether Student 1 should remain in the classroom and gave each student the opportunity to explain his or her vote. Respondent tallied the votes on the chalk board. The final vote was 14 for removing Student 1 and two for allowing him to remain.4 Respondent thereafter sent Student 1 back to the office. Respondent made the ultimate decision to exclude Student 1 from her classroom, but in making that decision she considered the votes that had been cast by Student 1’s classmates. The reward system utilizing tokens was in place for Student 1 on May 21, 2008. There was insufficient evidence to establish that Respondent utilized the reward system or any other strategy, including the use of Mr. Graff’s class, that had been developed for Student 1 before sending him to the office on the first occasion or before removing him from her class after the classmates had cast their votes and made statements about his behavior. When Student 1’s mother came to pick Student 1 up from school on the evening of May 21, 2008, she told Respondent that she had embarrassed her son and that he was disabled and autistic. Respondent apologized to Student 1’s mother. Student 1 was with his mother when she made the quoted statement to Respondent and when Respondent apologized. When asked by his mother how he felt, Student 1 said he felt sad. Except for her conduct on the May 21, 2008, incident described above, Respondent has had a positive 12-year career as a teacher at Morningside. Respondent testified that at no time did she intend to harm, embarrass, or do anything negative to the student. Respondent further testified that she did not, at the time think she was hurting anyone. She believed that she could show all of her students that there are consequences to actions and to show that actions may affect others. Respondent testified, credibly, that early childhood education is her “passion” (as she termed it at Transcript, Volume III, page 275, beginning on line 11). Petitioner’s investigative report reflects (beginning on page 13 of Petitioner’s Exhibit B) the following: There is no evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment to Student 1. However, there is a question as to whether Ms. Portillo exercised the best professional judgment during the incident under investigation. . . . Immediately following the incident of May 21, 2008, Petitioner prohibited Respondent from returning to Morningside. Petitioner assigned Respondent to the School Board office with pay while Petitioner investigated the matter. On November 14, 2008, Mr. Lannon made his recommendation to the School Board. The recommendation was that Petitioner suspend Respondent for a period of one year dating from the School Board’s final order and that her contract be changed from a Professional Services Contract to an Annual Contract. At its meeting of November 14, 2008, the School Board suspended without pay Respondent’s employment for a period of one year and voted to change her contract from a Professional Services Contract to an Annual Contract should she return to employment with the School Board.5 The greater weight of the credible evidence overwhelmingly established that Respondent’s conduct on May 21, 2008, described above is properly characterized as misconduct as that term is generally understood. As will be discussed below, Petitioner established that Respondent’s conduct on May 21, 2008, violated the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida, thereby violating the provisions of subsection (xxix) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner established that Respondent’s misconduct on May 21, 2008, violated subsection (xxxi) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition by exposing Student 1 and the other students in her class to unnecessary embarrassment or disparagement. Petitioner established that Respondent utilized an inappropriate method of discipline in removing Student 1 from her class after the class vote, thereby violating subsection (xxxvii) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner failed to establish that Respondent was abusive or discourteous in violation of subsection (ix) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition. Mr. Lannon, Ms. Ranew, Ms. Gascoigne, and Ms. Cully are experienced educators with supervisory responsibilities. Each opined that Respondent had violated the Code of Conduct for the Education Profession and explained the reasons for those opinions. Petitioner established that Respondent failed to exercise the best professional judgment on May 21, 2008, as alleged in paragraph 19a of the Petition. The alleged violation set forth in paragraph 19b will be discussed below. Petitioner failed to establish that Respondent’s misconduct was unethical and, consequently, failed to establish the violation alleged in paragraph 19c of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety as alleged in paragraph 19d of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from harassment as alleged in paragraph 19(e) of the Petition. Petitioner has charged Respondent with “misconduct in office.” There is a difference between the generally used term “misconduct” and the term “misconduct in office.” The State Board has defined the term “misconduct in office” by Florida Administrative Code Rule 6B-4.009(3), as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system. While there can be no meaningful debate as to whether Respondent's conduct should be characterized as “misconduct,” there was a dispute as to whether Respondent’s effectiveness in the school system had been impaired, thereby establishing that Respondent was guilty of “misconduct in office” as alleged in the Petition. This incident received extensive coverage by the local, national, and international press. Locally, Petitioner received a high volume of written communications and telephone calls in response to Respondent’s conduct. Some communications supported Respondent’s conduct while others condoned Respondent’s conduct. The communications condoning Respondent’s conduct far outweighed the responses supporting her conduct.6 Petitioner received requests from parents that Respondent not be allowed to teach their students should she return to class. In addition to the negative publicity and negative communications generated by her conduct, Respondent’s principal has lost confidence in her. Ms. McCully testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume III, beginning at page 371, line 17): Q. After the May 21, 2008, incident involving Ms. Portillo, would you recommend that she be hired as a teacher in your school? A. No, I would not. Q. Why is that? A. Personally, I feel that I would not have that rapport, trust, with her and be able to work with her after this. Dr. Lannon testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume I, beginning at page 106, line1): Q. In your opinion, has Ms. Portillo’s actions on May 21, 2008, resulted in a loss of her effectiveness. A. I believe so. Q. How do you reconcile that with your recommendation that she can go back to work after a one-year suspension without pay? A. I came to that with great pain. I believe that the actions that Ms. Portillo undertook actually rose to the issue of termination. But also, in a sense of fairness, Ms. Portillo is a twelve-year employee who has contributed to the lives and the well-being of children in St. Lucie County. My sense on this was that while there is a price to pay – and I believe that the action of not protecting children is literally the most serious thing we can do in a negative way – that her past career would warrant a second chance, but not in the environment in which she had willfully created these series of steps leading to the involvement of a particular child in what I believe to be an embarrassing and disparaging way and the involvement of the class in a way that we may never know. Q. Did you consider terminating Ms. Portillo? A. I did. Q. And is it my understanding that you’re saying the fact that she had twelve positive years mitigated that decision. A. Yes. That’s exactly correct. Q. And that led you to the recommendation that’s at issue? A. That’s exactly right. On cross-examination, Mr. Lannon testified in response to questions by Respondent’s counsel (Transcript, Volume II, beginning on page 149, line 25): Q: And you’re of the opinion as you sit here today, Mr. Lannon, under no circumstances . . . that you would allow [Respondent] to teach elementary school children in St. Lucie County. I would not put her in pre-K through fifth grade. That’s the definition. So that would be correct. In his testimony at the formal hearing and in his letter of November 3, 2008, Mr. Lannon described the mitigating circumstances he considered in contemplating his recommendation to the School Board. The following, taken from Mr. Lannon’s letter, succinctly states those considerations: I have also considered mitigating circumstances. You have had a long (12 years) and positive career in St. Lucie County Public Schools. Your annual evaluations, conducted by five Principals over 12 years are positive. Behavior of young students, in groups such as classrooms, is often difficult and professionally demanding. The official investigation states “there is NO evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment . . . “ [Emphasis in the original.] Except for the conduct at issue in this proceeding, Respondent has been an excellent, dedicated teacher during her 12-year tenure at Morningside. She has spent a considerable amount of her personal time working on an extra-curricular activity named Odyssey of the Mind. Many of the employees at Morningside and parents of former students are supportive of Respondent. As to those employees and parents, Respondent’s reputation remains intact despite the negative publicity regarding the conduct at issue.7 The greater weight of the credible evidence clearly established that Respondent’s conduct on May 21, 2008, has impaired her effectiveness in the system. Petitioner established that Respondent’s conduct on May 21, 2008, constitutes “misconduct in office” within the meaning of Florida Administrative Code Rule 6B-4.009 and, consequently, constitutes grounds for the suspension of her employment pursuant to Section 1012.33(6)(a), Florida Statutes, which provides, in relevant part, that the employment of a teacher with a professional services contract can be terminated or suspended for just cause, which is defined to include “misconduct in office” as defined by State Board rules. Section 1012.33(4)(b), Florida Statutes, provides, in relevant part, as follows: (b) Any . . . member of the instructional staff . . . may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons therefore . . .. In explaining the rationale for his recommendations, Mr. Lannon testified as follows in response to questions from counsel for Respondent as to his recommended disposition of this matter (beginning at Transcript, Volume II, page 133, line 15): Q. What would happen in the one year that would allow her, from the year that you’re recommending that she be suspended to the year that she, if your recommendation is accepted, that she would come back to work for the School Board, what would happen in that year that would change the alleged loss of respect and confidence in her colleagues first? A. It might not. Q. Your same answer would be as it relates to students? A. Yes, sir. Q. And the parents. A. That’s correct. I have no knowledge of how they would feel. Q. So in essence, you’re allowing, you’re recommending that a person that you’re not sure would be respectful [sic] or confident [sic] by teachers, students, parents, and members of the community, you’re recommending that that person still work for the St. Lucie County School Board. A. I’m allowing that the 12 years prior to May 21, 2008, mitigated my thinking that said this person is deserving of another chance at some point in time. Q. And this chance that you’re talking about is not a chance of great risk or harm if I follow your logical conclusion; is that correct. A. If you look at it more fully, you’ll see that I would not allow her to teach at that grade level in an elementary school again. And there is a difference in the ability of students to be able to discern the words of adults as they age. And I’m going to bank on the fact that the quality that Ms. Portillo had previously shown, absent her actions on that day, which I believe to be premeditated and well thought out, even though they were quick, would not occur again. There can be little doubt that Respondent has been traumatized by the negative reactions to her misconduct.8 Respondent and her family have suffered economically as a result of her suspension. Respondent apologized to Student 1’s mother and testified that she is remorseful.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent’s employment for a period of one year from November 18, 2008, and provide for the change of her contract status from a Professional Services Contract to an Annual Contract, contingent upon the availability of a position for which Respondent is qualified and certified. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of March, 2009.
The Issue By petition for the revocation of teacher's certificate dated August 5, 1980, the Professional practices Council alleged that respondent "violated Section 6B5.03(1)(a), Rules of the State Board of Education [RSBE], in that he failed to keep records"; "violated Section 6B5.03(2)(a) [RSBE], in that he failed to utilize available instructional materials and equipment necessary to accomplish the designated task"; "violated Section 6B5.05(1)(a) [RSBE], in that he failed to provide frequent and prompt feedback covering the success of learning and good achievement efforts"; "plead[ed] guilty to driving while intoxicated" on or about March 29, 1979; "plead[ed] no contest to driving while intoxicated" on or about August 19, 1974; "was found guilty of driving while intoxicated" on or about April 22, 1967; "committed personal conduct which seriously reduces his effectiveness as an employee of the School Board, . . . committed acts which are not a proper example for students, and . . . failed[ed] to meet the minimum standard of competent professional performance"; "all in violation of Florida Statutes Section 231.28, Section 231.09 and Section 6B5."
Findings Of Fact The parties stipulated that respondent holds Florida Teacher's Certificate No. 039140, Graduate, Rant III, in the areas of physical education and social studies, due to expire on June 30, 1982. In the fall of 1967, after obtaining the B.S. degree from Florida Memorial College in St. Augustine, respondent, who was 57 years old at the time of the hearing, began working for the Duval County School Board. He first taught American history at Standard Vocational High School. After two years at Standard Vocational, he began at Fort Caroline Junior High School in 1969, where he taught ninth grade civics for two months, then physical education, after which he left off teaching and worked as an administrative assistant, with responsibilities for discipline and supervision of students in the cafeteria and bus loading area. Respondent then worked at Darnell Cookman as an administrative assistant until that school closed, when he returned to Fort Caroline Junior High School, as an administrative assistant. In the fall of 1974, Mr. Richardson began as an administrative assistant at Andrew Jackson, a position he held through the end of the 1976-1977 school year. In the fall of 1977, he began teaching geography and American history at Landon Junior High School. The next school year Mr. Richardson received an unsatisfactory evaluation from his principal, the first such evaluation in his career. In accordance with school board policy in such circumstances, his request for a transfer was honored and he began teaching in the fall of 1979 at Oceanway Seventh Grade Center (hereinafter "Oceanway"). On June 8, 1974, a Saturday, respondent was arrested and charged with driving while intoxicated. On his plea of nolo contendere, he was found guilty as charged on August 23, 1974. Respondent was again arrested on March 10, 1979, also a Saturday, and charged with driving while intoxicated. He was adjudicated guilty on his plea of guilty on March 20, 1979. Judith Poppell began as principal at Oceanway in the fall of 1979. Before she met respondent, she received a letter informing her that his work the preceding school year had been evaluated as unsatisfactory and asking her to evaluate respondent no later than October 31, 1979. At all pertinent times, only the Oceanway principal, the dean of boys, and the dean of girls had authority to administer corporal punishment. Any teacher, however, was authorized to use reasonable force to break up a fight or in self-defense. On the morning of September 26, 1979, Mr. Richardson had responsibility for supervising students in the area where they were disembarking from buses. He directed the students to stand clear of the bus ramp and placed his hand on a 15-year-old boy who hung back. The student called respondent a "motherfucker" and threw his books at Mr. Richardson, breaking his glasses. Respondent then pushed the student to the ground. Ms. Poppell asked respondent and the other teachers at Oceanway to furnish her copies of lesson plans weekly. Respondent furnished Ms. Poppell copies of lesson plans, but some were late or incomplete or, in Ms. Poppell's opinion, unrelated "to the minimum skill objectives." (T. 121) It appeared to her "that what in fact [respondent] was doing was going sequentially in the textbook" (T. 125) rather than teaching what would be tested on the minimum level skills test, a standardized achievement test administered county wide. On October 3, 1979, Ms. Poppell observed respondent teaching his Man and Society class at which time "the students were involved in a discussion of values and beliefs and needs, which is part of the course material." (T. 127) During this class, respondent lectured and, in Ms. Poppell's opinion, "did make some very good points" although eventually the students "began to get wiggly." (T. 127) On October 17, 1979, Ms. Poppell was in or near the gymnasium "getting together a candle order to be filled" (T. 128) when she heard respondent lecturing on softball to a physical education class which included "some children . . . who were disciplinary problems." (T. 129) While Ms. Poppell was listening, respondent shouted to a student, "Shut up. I'm not talking to you." (T. 129) During the 1979-1980 school year, Wade Randall Godfrey, a seventh grade student in Mr. Richardson's physical education class, complained to Joseph H. Fowler that Mr. Richardson had hit him with an aluminum baseball bat. After looking into this allegation, Mr. Fowler "could not find any evidence that [Godfrey] was actually struck by a baseball bat." )T. 43) Neither did the evidence adduced at hearing establish that respondent struck the student Godfrey with a baseball bat. On October 31, 1979, Ms. Poppell evaluated respondent's work as unsatisfactory based on her observations and those of Dr. Beyerle and Mr. Kitchens, which she related to respondent. At that time she suggested that respondent join ten other Oceanway teachers for an after school seminar (1.5 hours for each of six successive days) "designed to help teachers deal with disruptive students." (T. 130) Respondent did not avail himself of this opportunity because he coached soccer after school Respondent did attend two days of observation of physical education programs, at the behest of school administrators. Ms. Poppell asked the head of the social studies department at Oceanway, Mrs. Wiggins, to assist respondent in the preparation of lesson plans. At Mrs. Poppell's instance, Mrs. Wiggins spoke to respondent in November of 1979 about the failure of respondent's lesson plans to "follow the minimum level skills booklet." (T. 63) She began preparing respondent's lesson plans for him and continued preparing them for four or five weeks. In mid December, Mrs. Wiggins complained to the principal that a classroom she used the period after respondent had taught a class in it was littered with paper. Mrs. Poppell wrote respondent a note about the incident which Mrs. Wiggins took from respondent's mail box. Mrs. Wiggins meant to intercept the note to avoid hard feelings on respondent's part, but did not realize that respondent had already read and replaced it. After this episode, respondent prepared his own lesson plans, unassisted. While Mr. Richardson taught at Oceanway, Richard Edward Chandler was a student in his first semester Man and Society class. Mr. Richardson gave this class several tests. In one instance, he passed out only three to five copies of a test to the entire class. On that occasion, he instructed the recipients to pass the test copies on to other students after copying the test questions. As a result, the student Chandler did not have enough time to finish the test. According to respondent, he meant for the students to work in groups on the test, a technique he has concededly never used before or since. At the end of the first grading period in the fall of 1979, respondent was one of a number of teachers to whom John A. Beyerle sent messages because all of their students' grades had not been reported on time. Mr. Richardson was late with grades for eleven students, at the end of the first grading period. At the end of the second grading period, he was late with grades for seventeen students. James Kitchens, a physical education supervisor for the Duval County School Board, observed respondent teaching on two occasions. The first time was incidentally in October of 1979 when he was evaluating the physical education program at Oceanway as a whole. On one visit or another, Mr. Kitchens observed some students "running loose," (T. 173) and probably on the second visit, remarked the inefficient use of tumbling mats: single lines of students crossed mats longitudinally instead of double lines crossing the widths of the mats. Mr. Kitchens agreed that respondent had "some basic competence and skills in physical education management" (T. 180) but detected "some rustiness." (T. 180) On December 5, 10, and 11, 1979, Maurice Shuman, Duval County School Board's supervisor for social studies, observed respondents teaching his social studies classes. Mr. Shuman testified, "If I were going to evaluate Mr. Richardson certainly I would need, you know, a greater number of visits" (T. 197) and offered various suggestions and comments he felt would be helpful to respondent in his teaching. Dr. Beyerle observed respondent teaching two classes. On the first occasion, respondent spent the hour reviewing and, although Dr. Beyerle perceived certain "weaknesses," he really c[ould]n't say it was a bad lesson." (T 190) On the second occasion, respondent taught "a pretty good lesson." (T. 90) On at least one occasion, respondent failed to call the roll in a social studies class. At various times, respondent lectured, engaged students in "well paced" questions, used a globe, cassettes, and ditto sheets. Under the Duval County School Board's policies, no student could pass either the seventh grade geography or Man and Society courses, if he failed a standardized test administered at the end of the course, regardless of his performance in class or on other tests. In violation of this policy, respondent gave passing grades to two students, Carmella Scott and Anthony Watts, who had failed the minimum level skills test (MLST). Of approximately 36 students in respondent's first semester Man and Society class, eight failed the MLST, including students who had received "B"s for the 9- and 18-week grading periods and who had done well on a final exam respondent prepared.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that petitioner suspend respondent's teacher's certificate for one (1) year. DONE AND ENTERED this 3rd day of February, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.
Findings Of Fact Except for the matters at issue, the Petitioner is full qualified for licensure as an agent and to obtain an agency license. The Petitioner served twenty (20) years in the US Army, retiring as a sergeant-major in 1973. His last ten (10) years in service were involved directly with work which the agency concedes is the equivalent of the work done by an employment clerk. The Petitioner, since retiring from the US Army, has been employed as a teacher/career counselor in the Detroit school system at the high school level. There he instructed high school ROTC six (6) to seven (7) hours per week. The remainder of his time was spent in counseling and duties associated with administration of the ROTC department of which he was head. The Petitioner has counseled more than 200 students regarding careers to include helping them fill out applications, helping to place them in programs, and encouraging them to develop job skills. He held this position until applying for this license. The petitioner also served for more than three (3) years immediately preceding his application on the Harper Woods School Board. As a member of the school board he had to approve the hiring, firing and granting of tenure to school board employees, and review negotiated contracts for employees of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of Ralph E. Young for an employment agency/agent license be granted. DONE and ORDERED this 21st day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ralph E. Young 2117 South East Erwin Road Port St. Lucie, Florida
Findings Of Fact Introduction At all times relevant hereto, respondent, Blondell Williams, was a fifth grade teacher at Poinciana Park Elementary School (PPES) in Miami, Florida. She was under a continuing contract as an elementary teacher for petitioner, School Board of Dade County (Board). She has been a teacher in the school system since 1981. On March 18, 1987 the Board voted to suspend Williams without pay effective that date for "misconduct in office, willful neglect of duty and gross insubordination." Its decision resulted in Williams requesting an administrative hearing. She has remained suspended from her job without pay during the pendency of this proceeding. The charges are based upon three counts of alleged illicit misconduct as set forth in the Amended Notice of Charges issued on February 13, 1988. The alleged illicit conduct generally includes consumption of an alcoholic beverage on campus, sleeping in class, fraudulently obtaining a lunch, excessive tardiness and absenteeism, repeatedly failing to follow various orders, and demonstrating incompetency in the classroom. These charges will be discussed separately hereinafter. Consumption of Alcoholic Beverages On February 2, 1987 respondent left campus during lunch hour to visit her father who was ill. When she returned, she was required to sign in on a roster which was in the reception area outside the principal's office. Williams entered the office area and went to the sign-in roster maintained by the principal's secretary, Delois Parker. Sitting next to Parker was Nena Brown, a system aide, and Mary White Blue, a teacher's aide. Williams was carrying a clear plastic cup containing a light pink beverage which she had brought from her car. The cup was then approximately one-quarter filled. After signing in, and while turning around, Williams accidentally spilled the beverage on Brown's leg and hand and on the carpet. Although Brown did not detect the nature of the beverage, Blue and Parker immediately detected the smell of alcohol. Another teacher, Silvia Munoz, then entered the room and also detected the smell of alcoholic beverages. At about the same time, Parker called the principal, Lawrence H. Crawford, out of his adjoining office to observe the incident. After examining the carpet, Crawford concluded that the beverage contained alcohol. Thereafter, he questioned Williams, who admitted she had drunk about a quarter of a cup of "White Mountain Cooler" taken from a bottle in her car. Crawford instructed Williams to bring the bottle to his office, and after examining the label on the bottle, he confirmed it was an alcoholic beverage. At hearing, Williams acknowledged that she had brought a cup of the beverage on campus during school hours and consumed a small amount. According to Williams, the bottle had been left in her car by a friend from the night before, but she denied knowing it contained any alcohol. This contention is not accepted as being credible since the beverage had an alcoholic odor, the label on the bottle reflected its alcoholic content, and Williams acknowledged she knew it was an alcoholic beverage at a conference for the record held on February 3, 1987. Accordingly, it is found that Williams was in the possession of, and consumed, an alcoholic beverage on campus during duty hours. However, the charge that Williams was "under the influence of an alcoholic beverage" while on duty was not established. Sleeping in Class On a warm spring day morning in 1986, the assistant principal of PPES, Terrance Armbruister, had an occasion to visit Williams' classroom. His visit was prompted by Crawford who had directed Armbruister to check out complaints that Williams was sleeping in class. After knocking on her classroom door, he unlocked it, entered and observed Williams with her head resting on her desk. He approached her but Williams did not move. Finally, she raised her head in a startled fashion as if she had just awoken. Armbruister then instructed her to wash her face and refresh herself. On or about March 28, 1986 P. J. Harden, an assistant principal in charge of curriculum at PPES, was monitoring the classroom next to Williams. The two classrooms were divided by a partition. Because of noise caused by students in Williams' classroom, Harden had difficulty monitoring the class. He pulled the partition open and observed Williams with her head on her desk asleep. He watched her sleep for approximately five minutes until a student shook Williams and awoke her. Williams apologized to Harden and promised it would not happen again. According to Harden, this was respondent's reply on every occasion that she was caught sleeping. On the afternoon of November 11, 1986 Harden again had an occasion to visit Williams' classroom while escorting a prospective teacher around the school. He found her asleep even though she was supposed to be teaching a class. To avoid embarrassment, Harden declined to allow the guest to enter the classroom. He then awoke Williams and told her to report to the principal's office. Harden stated that he found Williams sleeping in her classroom on a number of other occasions although he was unable to give specific dates. On each occasion, she was sent to the principal's office and an administrator would be assigned to cover her classroom. At no time did Williams ever give an excuse to Harden for her actions other than saying she had a second job which prevented her from getting a regular night's sleep. No Free Lunches The Amended Notice alleges that during school year 1986-87, Williams was guilty of "fraudulently obtaining and consuming school provided, student lunches." This charge stems from an incident on or about December 11, 1986 when respondent approached the cashier at the school cafeteria and told the cashier to give her a lunch without charge and to record it as being a free lunch given to a student. The cashier complied with Williams' instructions. By chance, the principal learned of this and confronted respondent with the charge. Williams admitted she had obtained an unauthorized free lunch. Her only excuse was that she was short of funds and had seen another teacher do it on one occasion. At Crawford's direction, Williams reimbursed the school for the meal. Excessive Tardiness and Absenteeism The school day at PPES began at 8:15 a.m. each day and lasted until 3:20 p.m. Teachers were expected to be in their classrooms by 8:20 a.m. so that they could greet their students before classes began at 8:30 a.m. Williams was aware of this requirement and was reminded of it from time to time by her supervisors. In addition, teachers were given thirty minutes for lunch. If a teacher left campus during lunch hour, he or she was expected to sign in and out on an attendance roster maintained in the principal's office. Even if a teacher left campus during lunch hour, the lunch period was still only thirty minutes, and any additional absence by a teacher required authorization from the principal's office. Williams was aware of this policy and understood that a failure to comply with these instructions was a violation of school policy. Under school policy, and in accordance with instructions in the teacher's handbook, a teacher was obligated to call the principal's secretary if he or she was going to be late to school. This call was expected to be made prior to 8:00 a.m. so that the principal could assign an administrator or other teacher to the classroom until the teacher reported to work. In addition, if a teacher knew he would be absent from school the following day, he was expected to telephone the principal's secretary before 2:00 p.m. on the day prior to the absence. If the absence was not known until after 2:00 p.m., the teacher was expected to telephone an assigned number between 7:00 p.m. and 10:00 p.m. that evening, or at 7:00 a.m. on the day of the absence. This enabled the school administration to timely obtain a substitute teacher. Williams was aware of these requirements. During school year 1984-85, Harden was the assistant principal in charge of curriculum at PPES. His responsibilities included counseling and meeting with teachers who were tardy or absent. On or about October 19, 1984 Harden met with Williams concerning her "continuous" tardiness in reporting to school each morning. She was told that the school day for teachers began at 8:15 a.m. Despite this warning, Williams was late to work on October 19, November 29 and December 4, 1984. This prompted another meeting by Harden and respondent on December 4, 1984. Williams was given a memorandum advising her that she had to be at school by 8:15 a.m. each morning. At the meeting, Williams explained she had a second job which lasted late into the night and enabled her to catch only a "catnap" in the early morning hours. Harden instructed her to set her priorities in order and to adhere to the school attendance requirements. Because of continuing tardiness and absences from work, Williams received another memorandum from Harden on January 24, 1985. The memorandum cited Williams for leaving campus on January 12 and 17, 1985 without authorization and being late to work on January 17. The two held a conference for the record on January 31, 1985 concerning these problems. On March 7, 1985 Crawford sent Williams a memorandum stating that he had "serious concerns about (her) tardiness and (her) habit of illegally leaving the campus during the school day." Another conference for the record was held on March 15. At the conference Williams again gave an excuse of having a second job as well as having problems with a boyfriend. She was told that she must comply with attendance requirements and not let the second job interfere with her primary job of teaching. On July 18, 1985 Williams received a memorandum from Harden for reporting late to work on July 17 and missing a homeroom assignment. The memorandum advised her to immediately remedy the situation and offered to help her if assistance was needed. Despite her poor attendance record, Williams was given an "acceptable" rating and recommended for employment in her annual evaluation rendered on May 17, 1985. There was, however, a comment that a "conference for the record for tardies" had been held during the school year. Williams' attendance and punctuality record did not improve the following school year. She was given at least five memoranda between July, 1985 and January, 1986 concerning her tardiness or absences. She was counseled by Armbruister on October 22, 1985 and specifically told to review the faculty handbook concerning attendance requirements. Armbruister spoke with her again concerning the same problems on November 12, 1985. Because the problem persisted, school officials felt compelled to hold a conference for the record on January 27, 1986. At that time, Williams attributed her difficulties to a second job, problems with a boyfriend, a "peeping tom" in the neighborhood who kept her from sleeping, and no telephone. She admitted she was wrong and indicated she would try to do better. Despite this meeting, Williams took an unauthorized leave at lunch on January 31. This prompted a conference with Armbruister the same day to discuss the latest incident. Williams was given a memorandum advising her to review a summary of the conference for the record held four days earlier and to follow the school's recommendations. In school year 1986-87, Williams' erratic attendance and lack of punctuality continued. As of December 16, 1986, which was roughly halfway through the school year, Williams was late or absent forty-three out of seventy- five workdays. Because of this continuing pattern, a conference for the record was held by respondent and Crawford on October 9, 1986. Williams was found to be deficient in the area of professional responsibility and placed on prescription until December 19. This meant she had to fulfill certain conditions by the end of the prescriptive period. Among other things, Williams was required to arrive daily at work by 8:00 a.m., to timely telephone the office about any absences, to submit a written statement explaining each absence, to report to an administrator or office staff member upon arrival to school each morning, to have up-to-date emergency lesson plans, and to read the teacher contract and teacher assessment handbook. In the month of January, 1987, Williams was tardy on eleven mornings and absent from work on six days. In February, she was tardy the morning of February 2. This was also the day that Williams brought the alcoholic beverage on campus during lunch hour. An emergency conference for the record was held the following day, which was her last day at PPES. Failure to Follow Orders The Amended Notice alleges that, during school years 1984-85, 1985-86 and 1986-87, Williams committed acts of gross insubordination, including . . . repeatedly failing to follow ordered procedures . . . for reporting absences, . . . procedures concerning her morning arrivals at school, . . . procedures documenting absences, . . . procedures concerning lesson plans, records and student report cards, . . . orders to stay awake while (performing) . . . assigned duties, . . . orders concerning tardiness after lunch, (and) . . . orders to not leave the school campus other than during her lunch period. After being placed on prescription on October 10, 1986, Williams was required to fulfill certain requirements enumerated in finding of fact 18. However, she failed to notify an administrator or office staff member upon arrival at school each morning from October 13 through December 15 except for the week of October 13. She also failed to submit a written explanation of her absences on October 27 and 29, November 3, 18, 24 and 25, and December 2 and 3, 1986. She failed further to timely advise the school of absences on October 21 and 29, November 24 and December 2 and 3, 1986. All such failures were in direct contravention of the written prescription. Although Williams contended such violations were not willful, it is found they were intentional. Other than a reference to Williams' failure to timely prepare lesson plans during an undisclosed part of school year 1985-86, and a prescription requiring her to prepare emergency lesson plans in October, 1986, the Board did not establish that Williams repeatedly failed to prepare lesson plans, report cards and other unnamed "records." Williams was observed sleeping in class on two specific occasions during the school years in question. On a third occasion, an administrator observed her with her head down on her desk as if asleep but could not say for sure that she was sleeping. Assistant principal Harden also said Williams was caught sleeping on a number of other occasions but did not identify the dates. There being only three specific times on which Williams was found sleeping, it is found that no direct disobeyel of orders occurred on the part of respondent as to sleeping in class. Williams was given repeated instructions since 1984 to be punctual for work each day. Despite these orders, she continued to be late on numerous occasions between September 1984 and February, 1987. She also failed to timely advise the school concerning her absences or tardiness on many occasions in spite of specific instructions to do so. Finally, after having received a number of oral and written directives, she nonetheless left school on several occasions for more than thirty minutes during the lunch hour without authorization. Incompetency Respondent taught a Chapter One class at PPES. This class is comprised of students needing additional training and instruction in basic skills such as reading and mathematics. It is smaller than a regular class so that the teacher may give the students added instruction and attention. Because of respondent's repeated absenteeism and tardiness over the course of the school years, the children in respondent's class were denied the continuity of their instructional program. This also meant the lesson plans could not be carried out as prepared on those days on which she was late. Therefore, the students continually received a reduced period of instruction. This in turn impaired her effectiveness as a teacher. Respondent's Case In 1982, respondent's father became gravely ill and was thereafter bedridden at her mother's home until his death in 1987. According to Williams, her mother cared for him during the day and Williams took her turn at night. She also visited him on occasion during her lunch hour. As a result, she was required to spend long waking hours during the night with her father and to overextend her lunch hour while visiting him during the day. Williams attributed her attendance problems and her falling asleep to the demands of her father. However, Williams never told her superiors of this problem nor did she obtain authorization to leave campus during lunch hour. Just prior to her separation from PPES Williams acknowledged to school officials that she had a drinking problem. She also agreed to attend a clinic for problem drinkers. At hearing she denied having such a problem and said her earlier admission was given solely for the purpose of saving her job. However, she acknowledged attending a drinking clinic for a few days in early 1987. At the school's request, she also took a physical examination in February, 1987. The results are not of record. Williams contended that other teachers were late but were not written up. However, no proof as to this contention was submitted. The Teacher Assessment and Development System (TADS) is the standard measure of teacher performance in Dade County. There was no evidence of any negative TADS evaluation of respondent despite her repeated tardiness and absences from school. Respondent's last TADS evaluation covered the period up to and including March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office, gross insubordination and incompetency as set forth in this Recommended Order and that she be dismissed as an employee of petitioner. DONE AND ORDERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 4th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1456 Petitioner: Rejected as being unnecessary. Covered in finding of fact 1. Covered in findings of fact 5, 17 and 25. Covered in findings of fact 12-15 and 25. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in finding of fact 9. Covered in finding of fact 3. Covered in finding of fact 25. Covered in findings of fact 25 and 27. Respondent: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Rejected as being unnecessary. Accepted to the extent the same is covered in the findings; the remainder is rejected as being contrary to the more credible and persuasive evidence. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29 Rejected as being contrary to the more credible and persuasive evidence. Rejected since respondent's deficiencies constituted incompetency. Rejected as being irrelevant. Rejected since respondent admitted knowing that the beverage was alcoholic in nature. Partially covered in finding of fact 3. Rejected as being contrary to the evidence. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Rejected since respondent admitted having a drinking problem during her conference with Dr. Gil on February 3, 1987. Rejected since the Board's basis for dismissing respondent was based on other factors. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being contrary to the more credible and persuasive evidence. COPIES FURNISHED: Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3 175 Fontainebleau Boulevard Miami, Florida 33172 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399
