The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Families is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Callahan, Florida. Tausha Howard is the co-owner/director of Agape, and has been since it opened approximately 10 years ago. Tracey Flanders is a family services counselor. As a family services counselor, Ms. Flanders is responsible for inspecting child care facilities and family child care homes. Agape was one of the child care facilities that she inspected. She has been a family services counselor for three years and prior to that was a child protective investigator for DCF. Prior to her employment with DCF, she was a preschool teacher for eight years, which included some supervisory responsibilities and knowledge of compliance with DCF rules. Out of Ratio/Improper Supervision The Administrative Complaint charged Respondent with being out-of-ratio regarding the number of children per staff member in violation of Florida Administrative Code Rule 65C- 22.001(4)(b)2. Specifically, the Administrative Complaint alleges as follows: During a routine inspection conducted on March 6, 2013, DCF licensing counselor Tracey Flanders observed that: There was one (1) staff member supervising seven (7) children between the ages of one (1) and two (2) years old. A ratio of one staff for (6) children is required. This violation is based on Ms. Flanders’ observations during a March 6, 2013 routine inspection of Agape. She did a walk-through of the facility and examined the children’s records. As part of her walkthrough, she went to all of the classrooms. In each classroom, she counted the children and inspected for cleanliness. While in the toddler room, Ms. Flanders observed the children playing on the floor around the teacher. She counted seven children between the ages of one to two years old being supervised by one teacher. There was one two-year-old and six one-year-old children. Ms. Flanders explained at hearing that in mixed age groups, the required ratio of the youngest child applies. For mixed aged groups of children between one and two years of age, the minimum staff to child ratio is one staff member to six children. Agape has a classroom for preschool children, as well as one for the toddler children. Ms. Howard, however, disagrees that there were seven children in the toddler room and insisted that there were only six. She believes there was some kind of “miscommunication or oversight” because the seventh child (W.) had recently “aged out” of the toddler room and had been moved to the preschool class. The toddler class was where W. was assigned prior to his second birthday and reassignment to the preschool class. At the time of the inspection, the preschool children were out on the playground and came in while Ms. Flanders was present. Ms. Howard recalls she was standing in the baby room window. According to Ms. Howard, W. was being redirected from “bothering the blocks” to go rejoin the preschool group who was having story time. Therefore, she contends that the child was not in the toddler room, but was being redirected into the preschool classroom. Ms. Flanders insists that Ms. Howard was not with her when this incident happened, that the children were playing on the floor, and that the two-year-old in question (W.) was not moved from the toddler room to the preschool room when she was there. Accordingly, she cited Respondent for an out-of-ratio violation. Prior to the March 6, 2013 routine inspection, Agape had previous instances of being in violation of the ratio requirements. As a result of prior Administrative Complaints which included ratio violations, DCF and Respondent entered into a settlement agreement in March 2013, in which Respondent acknowledged that there have been five Class II ratio violations within a two-year period. Additionally, Respondent agreed that if future ratio violations occurred, the license “will again be subject to suspension or revocation.” The settlement agreement also stated that Respondent would finish out its then current probationary status through March 11, 2013, at which time Agape would be returned to an annual license. It is assumed that since the instant Administrative Complaint was dated April 11, 2013, that the license is currently on regular license status. Immunization Form Violation The Administrative Complaint charged Respondent with not having required immunization forms for children in its care, in violation of Florida Administrative Code Rule 65C- 22.006(2)(c). Specifically, the Administrative Complaint alleged that during the routine inspection by Ms. Flanders on March 6, 2013, she observed that a current form 680, Florida Certification of Immunization, was missing for two children. This allegation was based upon a file review made by Ms. Flanders which revealed that immunization records for two of the children, H.A. and M.C., had expired. The same violation was cited three previous times within a two-year period. On a reinspection, the center’s immunization records were current. According to Ms. Howard, the child, H.A., was out of the center for a medical reason and was not enrolled in the center at that time. However, his file was still there. Further, she discussed this with Ms. Flanders and afterwards wrote a statement that H.A. was not currently enrolled in the school and placed it in his file. As for child M.C., the child was enrolled but was no longer attending the center until M.C. obtained a current immunization record. Ms. Flanders explained that the child care facility must inform her if a child is enrolled but not attending. In that event, she skips that child’s record during her review. Level 2 Screening Documentation The Administrative Complaint charged Respondent with a violation of Florida Administrative Code Rule 65C-22.006(4)(d) and alleged the following: Documentation of Level 2 screening was missing for one (1) staff member. The Preschool Teacher’s adult son, D.W., was observed in the classroom with children on more than one occasion. Director stated D.W. is at the facility one (1) to two (2) hours a day, every other day. Licensing Counselor previously advised provider D.W. could not be present without passing a Level 2 screening. These charges were based on Ms. Flanders observing the adult son (D.W.) of one of the preschool teachers sitting at the desk in the preschool room with the children present, and the content of a conversation she had with Ms. Howard regarding this issue. There is an exception to the background screening requirement for volunteers who work there less than 10 hours a month. Accordingly, Ms. Flanders spoke to Ms. Howard to determine how often D.W. was at the school. According to Ms. Flanders, Ms. Howard told her that he would come to the daycare and wait before work every other day for an hour or two before walking to Winn-Dixie. Ms. Flanders calculated that every other day would be 15 days a month, for one or two hours each time. Therefore, she determined that he was there more than 10 hours a month. D.W. does not have background screening on file. The Administrative Complaint states that the same violation was previously cited on May 14, 2011, resulting in Technical Assistance, making this the second Class II violation within two years about persons caring for children without background screening. Ms. Howard, however, denies that D.W. was ever in her child care center that frequently. According to Ms. Howard, D.W.’s family temporarily (for about a month to a month and a half) had only one car. During that time, D.W. would come to the center, but was only there a total of 2 hours in a month. “Again, D.W. is not in my center. He’s not ever been in my center every other day. He’s not ever been in my center more than 30 minutes to an hour.” Moreover, Ms. Howard asserts that when D.W. was in her center, he was not with the children but was in a classroom where there were no children. Both Ms. Flanders and Ms. Howard were credible witnesses.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order placing Respondent’s license on probation until the related cases involving Respondent have been heard and final orders entered; and imposing a fine of $100 per day for one day, and $30 per day for eight days, for a total of $340. DONE AND ENTERED this 8th day of May, 2014, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 8th day of May, 2014
