The Issue Whether Respondent violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B- 1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Dunn holds Florida Educator's Certificate 930668, covering the area of exceptional student education, which is valid through June 30, 2012. At all times pertinent to this case, Ms. Dunn was employed as a varying exceptionalities teacher at Seminole High School in the Pinellas County School District (School District). Deborah Joseph (Ms. Joseph), the director of School Partnerships for St. Petersburg College, hired Ms. Dunn for the Spring Semester of 2009 to supervise 12 student interns, teaching in various Pinellas County elementary schools. Ms. Joseph credibly testified that she asked Ms. Dunn what Ms. Dunn would do with her current employment as a Pinellas County teacher, if offered a job. Ms. Dunn stated that she would resign as a teacher. On January 30, 2009, during school hours, Ms. Dunn left the Seminole High School campus without permission from the school administration. When the school's assistant principal, Phillip Wirth (Mr. Wirth), questioned Ms. Dunn about her whereabouts, Ms. Dunn alternately claimed that she had been given permission by another principal to leave the campus and that she had been meeting with another teacher. Neither of Ms. Dunn's explanations was supported by the assistant principal or the teacher. Consequently, on March 9, 2009, Mr. Wirth gave Ms. Dunn a written reprimand for her conduct. The evidence clearly and convincingly shows that Ms. Dunn continued her employment as a teacher at Seminole High School while at the same time working a second job for St. Petersburg College, supervising student interns working in elementary schools. Unfortunately, Ms. Dunn's work hours at Seminole High School coincided with the student interns' work hours at the elementary schools. In order to work both jobs, the record shows that Ms. Dunn was routinely untruthful in her use of sick leave time and left the Seminole High School campus during school hours without permission. For example, the record shows that she requested sick leave on February 26, 2009; March 4, 2009; March 6, 2009; and March 17, 2009. On those very same dates, Ms. Dunn signed in to supervise interns at Pinellas Central Elementary School, Sandy Lake Elementary School, Plumb Elementary School, and McMullen Booth Elementary. Again, on one date, April 23, 2009, Ms. Dunn wrote in her leave request that "family and kids touch [of] flu" and that she was signing out for a doctor's appointment beginning at 9:30 a.m. The record shows on that same day Ms. Dunn miraculously recovered from the illness and was able to eat lunch at her husband's nearby restaurant at 11:50 a.m., and then supervise an intern at Pinellas Central Elementary School at 1:33 p.m. In addition to misusing sick leave, the record clearly showed that Ms. Dunn would leave the Seminole High School campus without permission or signing out and would falsify school records. For example, the record clearly showed that, on April 16, 2009, Ms. Dunn left the school campus without permission. The record shows that she signed out for lunch at 1:00 p.m. and that she returned at 1:30 p.m. However, the records also show at 1:45 p.m., that same day, Ms. Dunn signed into High Point Elementary in order to supervise an intern. Again, on April 22, 2009, Ms. Dunn left Seminole High School without permission or signing out at 9:46 a.m. Walter Weller (Mr. Weller), the principal of Seminole High School, credibly testified that co-teachers, like Ms. Dunn, are placed in exceptional student education classes in order to assist with the students' individual education plans and to help the students succeed. Further, he credibly testified that it was important that teachers remain on campus to keep classrooms covered, and it is a safety issue for the students. James Lott (Mr. Lott), an administrator in the Office of Professional Standards for the School District, credibly testified that the School District felt that progressive discipline was not appropriate in Ms. Dunn's case, because her actions amounted to stealing time and outright falsification of records. Ms. Dunn testified that she did not dispute that she had the second job and claimed that the collective bargaining agreement allowed her to work a second job. Ms. Dunn testified that she never used time off with pay and that the School District should have used a progressive discipline against her, rather than terminating her employment. Further, Ms. Dunn claimed that she and the School District had reached an agreement concerning her claim for unemployment compensation that the School District "would not go after my certificate." Ms. Dunn showed no remorse or acknowledgement of her many untruthful statements or wrongdoing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Dunn violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and 6B-1.006(5)(a), and suspending her educator’s certificate for two years followed by a period of three years' probation during which she shall be required, along with standard conditions utilized by the Education Practices Commission, to complete a three-hour college level course in ethics during the first year of her probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011.
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue The issue is whether Petitioner is entitled to a permanent teaching certificate.
Findings Of Fact The first factual issue involves the application that is in dispute. There are a July 1994 application for a temporary, or two-year, certificate and a January 1994 application for a permanent, or five-year, certificate. The record contains the July 1994 application for a temporary certificate, but not the January 1994 application for a permanent certificate. The record also contains a temporary certificate issued by Respondent on November 28, 1994, and effective for two years starting July 1, 1994. It thus appears that Respondent granted the July 1994 application. As is apparent from the two notices of reasons, Respondent has also denied an application of Petitioner. The first Notice of Reasons, which is undated, but presumably precedes the demand for a hearing signed February 18, 1997, refers to Department of Education Number 603025, which is the number borne by the July 1994 application and July 1994 temporary certificate. The Amended Notice of Reasons filed April 17, 1998, also refers to Department of Education Number 603025. If the Department of Education Number is specific to an application, rather than an applicant, then the notices of reasons either mistakenly refer to Number 603025 or represent an attempt to deny an already-granted application. If the Department of Education Number is specific only to an applicant--i.e., Respondent assigns the same number to all applications submitted by the same applicant--then the number is useless in trying to identify the application that is the subject of this case. This case obviously arose in connection with the application that Respondent denied; the circumstances suggest that the denied application was the January 1994 application for a permanent certificate. Petitioner testified that she had a two-year temporary certificate from about August 1992 through about June 1994. (Tr. p. 30) She testified that in January 1994 she applied for a five-year permanent certificate (Tr. p. 31), although she later testified that the January 1994 application was for another two-year temporary certificate (Tr. p. 32). Most likely, Petitioner misspoke when she described the January 1994 application the second time as an application for another temporary certificate. More likely, she applied, as she first indicated, for a permanent certificate in January 1994. One would expect that, six months later with school about to recommence, Petitioner filed for another temporary certificate because Respondent had still not issued the permanent certificate for which she had applied in January 1994. This recommended order therefore treats the subject application as the January 1994 application for a permanent certificate. Resolution of issues regarding Petitioner's candor in the application process obviously would have been facilitated by the inclusion in the record of the January 1994 application, but, consistent with the parties' handling of the matter, the recommended order will address the contents of the July 1994 application on the assumption that Petitioner completed the two applications similarly in making this disclosure. Without regard to the confusion concerning the applications, for reasons explained in the conclusions of law, Respondent, in granting Petitioner's July 1994 application for a temporary certificate, necessarily determined, or should have determined, that Petitioner was of sufficient moral character as to be permitted to teach for another two years in Florida's public schools. Petitioner received her first teaching certificate in Massachusetts in 1974. This certificate allowed her to teach kindergarten through sixth grade. In 1978, Petitioner moved to Naples. Petitioner first became employed by the Collier County School District in 1987 when she taught homebased Head Start, which did not require a teaching certificate. The following year, Petitioner taught Head Start in the classroom until the law changed and required that a person in this position hold a certificate. So, sometime in 1988, Petitioner began working at Gulf View Middle School, where she worked as an teacher or aide for in-school suspension, a teacher or aide for students with learning disabilities, and an aide for students who were severely emotionally disturbed. In 1992, Petitioner transferred to Lely Elementary School, where she continued to work as the aide to the teacher who had taught severely emotionally disturbed students at Gulf View. This teacher now had a class of emotionally handicapped students. Starting in August 1992, when Petitioner obtained her first temporary two-year teaching certificate in middle school math, she worked out-of-field at Lely as a teacher for emotionally handicapped students. She continued to teach at Lely through the end of the 1994-95 school year. At the end of the 1994-95 school year, the Collier County School District terminated the emotionally handicapped unit at Lely and asked Petitioner to teach in varying exceptionalities at Manatee Elementary School for kindergarten through fourth grade. Agreeing to do so, Petitioner began the 1995-96 school year at Manatee, but transferred back to Lely when, after a couple of months, the Collier County School District reopened the emotionally handicapped program at Lely. Petitioner finished the 1995-96 school year at Lely. At this point, Petitioner had worked nine years for the Collier County School Board: five years as an aide and four years as a teacher of emotionally handicapped students. Petitioner had worked in the classroom for all but the first of these years. Prior to the start of the 1996-97 school year, Petitioner received a letter from the Collier County School District stating it was not renewing her contract. The letter contained no explanation for this action. However, Petitioner's second temporary certificate had expired, and the Collier County School District may have been concerned about Petitioner's certificate status. The record does not disclose Petitioner's employment during the 1996-97 school year. However, since November 1997, Petitioner has been employed by the David Lawrence Mental Health Center. She works as a behavioral technician at Golden Gate Middle School, which is a school of the Collier County School District. Petitioner works on campus as a peer group counselor with boys who have been removed from school for behavioral problems. Early in 1996, Petitioner had inquired of Respondent as to the status of her two-year-old application for a permanent certificate. There is no evidence in the record to suggest that Respondent had taken any of the actions contemplated by Section 120.60, Florida Statutes, that would prevent licensure by default on the January 1994 application. To the contrary, the most reasonable inference from the long period of inaction is that Respondent did not request additional information within 30 days of receipt of the January 1994 application. It is obvious that Respondent did not grant or deny the January 1994 application within 90 days of receiving it. In response to Petitioner's effort to reactivate her application, by letter dated March 1, 1996, one of Respondent's investigators requested from Petitioner a copy of the initial police report and her statement. In response to some information that Petitioner forwarded and possibly her complaint as to the slow progress in reviewing her application, Respondent's investigator wrote Petitioner a letter dated April 8, 1996. He wrote that he could "give no explanation as to why you were not contacted about this incident in 1994 since you did acknowledge it on your application. Applicants are required to acknowledge arrest/revocation incidents on all applications." The April 8 letter restates requests, made only weeks earlier, for a statement of Petitioner and a copy of the police report. The July 1994 application discloses that Petitioner had received a "citation" for an open house party, and the court had "terminated" the case withholding adjudication. The two quoted statements in the April 8 letter are important on the issue of licensing by default. These statements reveal that the subject application disclosed the open house party and that Respondent had not requested information of Petitioner for over two years. By letter dated March 29, 1996, Petitioner provided Respondent's investigator, as he had requested in his April 8 letter, with a statement explaining the court documents that evidently had already been sent to Respondent. This letter either was misdated "March" when it should have been "April" or it responded to the earlier request--still in 1996--for additional information. In part, Petitioner's March 29 letter states: The open house charge was issued four months after a teenager was taken to the hospital for stomach problems and it was discovered that alcohol had been consumed. There had been a total of five teens at my house on that night, two were my children. All four students drove/accompanied the ill one to the hospital with my knowledge and permission, with no thought or suspect [sic] of alcohol use by any of us. The incident involving the "open house party" took place during the evening hours of New Year's Eve, 1992, and predawn hours of New Year's Day, 1993. The only persons in attendance were Petitioner, her two sons, N. and M.; N.'s girlfriend, S.; and a couple of boys who were M.'s friends. N. and S. were 16 years old, and M. and his two friends were 14 years old. For a couple of months ending the preceding Thanksgiving, S. had lived with Petitioner and her two sons. Her mother had told her to leave her house for undisclosed reasons. Petitioner, who had known S. as a student when Petitioner taught at Gulf View Middle School, agreed to allow S. to live with her family, but ended this arrangement when S. and N. began sleeping together over Petitioner's objections. S. then moved in with an aunt. S. and N. continued to date after she moved in with her aunt. During Christmas break, N., M., and M.'s two friends had a soccer tournament in Miami, and Petitioner drove them back and forth each day of the tournament. On the final day of the tournament, New Year's Eve, S. attended the games with Petitioner and N.'s games. When the games ended, Petitioner drove N., M., S., and M.'s two friends back to Naples, where they arrived sometime around 10:00 p.m. On New Year's Eve, after returning home, N. frequently left the house to visit a girl babysitting across the street. In general, Petitioner and the children watched television and played cards. From this point, the material points of the stories begin to diverge. Only two of the six witnesses testified: S. and Petitioner. Petitioner may reasonably have elected not to require that her two sons testify in order to avoid the reopening of a more serious matter that developed later that evening. Respondent could not secure the testimony of M.'s two friends, one of whom reportedly resides in New York and the other in Orlando. S. testified that she drank openly in front of Petitioner to the point that she became so drunk that, on a scale of 0-10 for impairment, she was a 10. She described her behavior as "loud and obnoxious." She testified that she was falling down. Interestingly, S. testified on direct examination that she did not recall if M. or Petitioner drank, but N. was drinking. She later testified that everyone, including M., was drinking, but immediately changed this testimony back to the original assertion that she did not know if M. was drinking. S. admitted that her recollection of the events of the evening was highly imperfect and did not include such memorable events as a trip to the hospital later in the evening after midnight. Also, S. is biased against Petitioner. Initially, she testified that Petitioner had known that she and N. were sleeping together--knowing that such an assertion would paint Petitioner in a bad light--but later she testified that she and N. had surreptitiously entered each other's bedroom unnoticed by Petitioner. Petitioner testified that, before midnight, she discovered that a bottle of vodka was down "a little bit" beyond the level that Petitioner had left it, after consuming two drinks. Petitioner testified that she announced to the group that she was putting the bottle back and no one was to drink anything. Petitioner knew at the time that S. had already had an extremely serious alcohol-abuse problem. Her father had died from a drug overdose, and her mother was an alcoholic. While in sixth grade, S. had been in the alcohol rehabilitation program at the David Lawrence Mental Health Center due to her drinking. Petitioner testified that the boys were not acting different during the evening, but S. was. Petitioner testified that S. was giddy, falling down, complaining, prior to midnight, of physical illness. S. began to vomit repeatedly. Petitioner helped her shower, gave her some ice, and then put her to bed in the still-empty bedroom that she had vacated a month earlier. Initially, Petitioner had thought that S. was simply trying to get attention, perhaps jealous of N.'s visits to the girl babysitting across the street. When the vomiting began, though, Petitioner realized that S. was not acting to get attention. At some point after Petitioner had gone to bed, after having gotten S. to bed, M. entered S.'s bedroom and had sexual intercourse with her. S. testified that the sex act was nonconsensual. At some point well after the act of sexual intercourse between S. and M., N. determined that S. was so ill that she had to go to the hospital, so he informed his mother of the fact. Fatigued from her trips to Miami, Petitioner gave N. the keys to her car, and, with M. and his two friends, N. drove S. to the hospital, where she did not require much, if any, treatment for her intoxication and evidently received no treatment for the sexual assault of which she later complained. The evidence fails to establish that N. had drunk any alcoholic beverages that evening. Moreover, even if N. had drunk alcoholic beverages, there is no evidence that, when Petitioner gave him the keys to the car, he was in any way impaired. The next morning, after leaving the hospital and returning to her aunt's home, S. told her aunt that M. had raped her. S. later filed a complaint with law enforcement alleging sexual battery, but she dropped the charges five weeks later. It is impossible on this record to determine whether the act was consensual or not, although S. clearly believes that it was not. Relatively little time in the questioning of S. was devoted to this aspect of her testimony. M., who has not admitted even that he had sexual intercourse with S., did not testify. As already noted, S.'s credibility is undermined by her poor memory and bias. About six months later, also while intoxicated, S., now 17 years old, was sexually assaulted by her mother's ex- boyfriend, who was nearly 30 years old. She filed and, two years later, dropped charges of sexual battery in this case too. Petitioner finds this and the earlier incident involving M. as part of a pattern of behavior in which S. files false charges of sexual battery in remorse after drunken sexual intercourse. Perhaps, but on this record, it is as likely that the intoxicated S. is sexually exploited by predatory males, presses charges, and then lacks the strength to pursue the matter. Although any sexual intercourse between 14-year-olds and 16-year-olds is not conducive to their health or welfare, this record does not permit a finding that the much more grave behavior--rape--took place in this case. Further, nothing in the record suggests that Petitioner should reasonably have anticipated that M. would have sexual intercourse with S. later in the evening. To the contrary, S. had recently lived with the family for a couple of months without any such problem with M. or a relationship between S. and M. About ten days after the incident, Petitioner spoke with an investigating officer from the Naples Police Department. She said that she might have used "poor judgment" in allowing the minors to drink "a little" alcohol. She added, in her statement to the officer: . . . I spent most of the evening with [S.], put her in the shower, got her out of the shower. She threw up outside; she threw up in the bathroom; she threw up in the waste basket. It was excessive, you know. I did not understand it. I did not think she could have been drunk from what she had to drink unless you say--you say, you know that she is allergic. Petitioner later tried to explain that her reference to what S. had drunk that night was based on information obtained after the night in question. However, the statement does not support Petitioner's explanation of after-acquired information. She said, "I did not think she could have been drunk from what she had to drink . . .." The tense suggests that the thought was contemporaneous to the events taking place that evening. Given Petitioner's knowledge of S.'s serious problems with alcohol, Petitioner could not have failed to make the connection between S.'s drunken-like behavior, including vomiting, and her consumption of alcohol, although this does not mean that Petitioner had witnessed S. consume more than a small amount of alcohol. More in demeanor than in testimony, Petitioner displayed no great fondness for S. This is not surprising, given the complaint that S. made to the police. However, it is likely that Petitioner's relationship with S. had deteriorated by the time that Petitioner, having discovered that S. and N. were sleeping together in Petitioner's house, had told her to leave. By New Year's Eve, Petitioner was unlikely to cater to S. by serving her any alcohol or even tolerate her consumption of anything near the amount of alcohol it took to get her as sick as she did. It is more likely that Petitioner did watch S., and possibly N., consume "a little" alcohol, but then S. consumed much more alcohol without Petitioner's knowledge. When Petitioner later was charged with an open house party, she retained an attorney and decided to plead no contest to the charge. Withholding adjudication of guilt, the court imposed a fine of $100 and six months' probation and required Petitioner to be evaluated by a court counselor. Although Petitioner testified that she believed that M. had not had sexual intercourse with S. that evening, she wanted to spare M. the turmoil of a trial, which undoubtedly would have raise the issue of his actions with S. on that night and possibly exposed him to criminal liability. The sole problem with Petitioner's behavior on New Year's Eve is that she failed to take reasonable steps to stop S. from drinking the little quantity of alcohol, of which Petitioner was aware that S. had drunk. Many options were available to Petitioner: taking S. to her aunt's home, insisting that S. go to bed in Petitioner's room, removing all known alcohol to Petitioner's bedroom, or discarding all known alcohol. However, although these options would have protected Petitioner from criminal liability, none--not even the first-- would have necessarily prevented S. from drinking that evening. Petitioner's failure has a bearing on her liability for the violation of the law prohibiting open house parties, although, for reasons explained in the conclusions of law, her plea and the court's withholding of adjudication cannot serve as a basis of denial, in themselves. Petitioner's failure also does not constitute a failure to protect a student. Petitioner was not in the relationship of a certificate-holder dealing with a student when the activities took place, in Petitioner's home, on New Year's Eve. S. was present due to her relationship with N. and secondarily her relationship with Petitioner's family. This relationship was not a teacher-student relationship. Petitioner's sole role on the evening in question was as a parent or a parent to a friend of a guest in the home. The failure to prevent S. from drinking a little alcohol on New Year's Eve and her subsequent plea of no contest to a violation of the law against open house parties-- which, though perhaps a plea of convenience, was certainly warranted under the facts--do not constitute a failure of moral character, which requires consideration of a broader range of behavior. Petitioner has worked nine years for the Collier County School District without any reported problems. During the four most recent of these years, she has worked in the classroom with temporary certificates issued by Respondent, which granted the second temporary certificate following disclosure of the arrest for the open house party and, as noted in the conclusions of law, following a determination that Petitioner had sufficient good moral character to work with schoolchildren. After losing her job with the School District, Petitioner found a job with a mental-health center that effectively returned her to the classroom for at least one, and possibly two, years, including the most recent 1997-98 school year. Again, there have been no reports of problems. On this record, Petitioner has demonstrated sufficient good moral character to qualify for a permanent certificate. The statement in the March 17, 1996, letter that there was "no thought or suspect of alcohol use by any of us" means that Petitioner, her sons, and M.'s two friends did not suspect S. of drinking alcohol. This statement was untrue. No later than when S. started vomiting, Petitioner knew that S. had consumed alcohol. However, Petitioner had disclosed the incident. When considered in the larger context of the underlying disclosure, this isolated misstatement--the product of two years' self-justification--does not constitute dishonesty or fraud, which are better illustrated by an attempted concealment of the incident. One more matter requires factfinding. During the deposition of Petitioner, which Respondent's counsel conducted by telephone, Petitioner's counsel, who was present with Petitioner and the court reporter, passed notes to his client during the questioning without disclosing to Respondent's counsel that he was doing so. The affidavit of the court reporter asserts uncontrovertedly that counsel passed repeated notes to Petitioner during the deposition, sometimes while Petitioner was in the middle of an answer. As noted in the conclusions of law, this practice is an abuse of discovery. As for findings of fact, two points emerge. First, the note-passing has not undermined Petitioner's credibility as a witness. It is impossible to find a loss of credibility without knowing at least the questions or answers during which counsel passed notes to the witness. In passing, the administrative law judge agrees with Petitioner's counsel that it was unnecessary to bring up the gesture made by Petitioner in the direction of the telephone-- i.e., directed toward Respondent's counsel. Coarseness in the relative privacy of a deposition room occupied only by Petitioner, her attorney, and a court reporter is not grounds for denial. Such a gesture is no more likely to reveal a lack of credibility than an excess of frustration coupled with a problem in impulse-control that, in this setting, is minor. If frustration and minor impulsivity, these characteristics would not assist the factfinder in his factfinding responsibilities. Second, the note-passing, while an abuse of discovery, was almost certainly not material. The administrative law judge has resolved most of the nonultimate factual disputes in this case favorably to Respondent, such as whether Petitioner was aware that S. had consumed any alcohol. It is unlikely that a deposition free of note-passing would have resulted in the resolution of the remainder of the direct or ultimate factual disputes favorably to Respondent. As to direct facts, it is highly unlikely that, absent a timely note, Petitioner would have testified that she watched S. drink herself sick or that she knows that M. raped S. As to ultimate facts, it is equally unlikely that, absent a timely note, Petitioner would have admitted, for instance, that her acts and omissions constituted a lack of good moral character or that her misstatement in the March 17 letter constituted dishonesty or fraud.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a five-year permanent teaching certificate. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998. COPIES FURNISHED: David Brooks Kundin Attorney at Law Post Office Box 430 Tallahassee, Florida 32302 Matthew K. Foster Brooks LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
