The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 23rd day of July, 1999.
Findings Of Fact The Respondent holds Florida teaching certificate 327703 covering the area of Drafting and Technical Construction. During the 1985-1986 school year, the Respondent was employed as a teacher at Lyman High School in the Seminole County School District. (T-85) Jilliana Holt attended Lyman High School as a senior during the 1985- 1986 school year. (T-84) At the time, she was 17 years old. (T-84) Jill met the Respondent in the fall of 1985 through a friend of hers who was a student in the Respondent's class at the time. (T-85) Although the Respondent did not teach any of Jill's classes, she saw him at school everyday when she visited her friend, Darla Franklin, on her way to class (T-86, Petitioner's proposed Finding #3.) Jill came to know the Respondent through casual conversation. (T-86) Eventually, they found that they shared a common interest in motorcycles. (T- 86) The Respondent owned a motorcycle. (T-86; P-11) In January 1986, the Respondent invited Jill to take a ride on his motorcycle with him. (T-87) In late January 1986, the Respondent took Jill out for a day-long motorcycle ride. (T-89) The trip took place on a Saturday, while Jill's mother was at work. (T-89) There was no predetermined destination. (T-89) After picking Jill up at her house on Saturday morning, they eventually arrived in Clermont between 12:00 noon and 2:00 P.M. (T-90) There they stopped at Quincy's Restaurant where they discussed some of Jill's personal and family problems. The Respondent indicated to her that he had taken some psychology courses in college and that he would work with her to help her with her problems. (T-90) The Respondent suggested that they go to a motel where they could sit and talk. Jill demurred, but the couple ended up at a nearby Howard Johnson's motel. (T-91, Petitioner's proposed findings #8 and 9.) Jill and the Respondent engaged in sexual relations at the motel. (T- 92) Following their trip to Clermont, the Respondent and Jill began to see each other in a dating relationship. (T-93) Fellow students, Sam Frazier and Darla Franklin, covered for Jill with her parents so that she could see the Respondent secretively. (T-94-97) On one occasion, Sam picked Jill up at her home ostensibly to go on a date. Instead, he dropped her off to meet the Respondent and later picked her up and took her home after she saw the Respondent. (T-94, 95) On another occasion, Darla covered for Jill one weekend when Jill accompanied the Respondent on an overnight boating trip. Jill was supposed to be spending the night with Darla when in fact she accompanied the Respondent to Port Canaveral and spent the night alone with the Respondent in his boat on the Atlantic Ocean. (T-95-99) The Respondent engaged in sexual intercourse and oral sex with Jill while on his boat. (T-98) This trip occurred near the end of March or the first of April 1986. (T-96) Jill visited the Respondent at his home on two occasions. (T-99) On one occasion, they had sexual intercourse in the Respondent's bedroom. (T-100) The Respondent took Jill to the Diplomat Inn in Orlando on two occasions. The first occurred in February 1986. (T-106; P-2) After arriving at the hotel on the Respondent's motorcycle (T-106; P-2) the Respondent obtained a room. While there, the Respondent engaged in sexual intercourse with Jill. (T-106) The Respondent took Jill to the Diplomat Inn on a second occasion in his pickup truck. (T-107; P-3) The Respondent was not feeling well when they arrived, so no sexual activity took place beyond hugging and kissing. (T-107) (Petitioner's proposed finding of fact #16.) On Valentines Day 1986, the Respondent met Jill and Darla Franklin at a Quincy's restaurant for dinner. The Respondent gave Jill a teddy bear with a golzd bracelet around its neck. (T-109; P-5, P-9) Later that evening Jill saw the Respondent at the school's curriculum fair. (T-109) When the Respondent returned to his classroom, Jill hugged, kissed and thanked him for the presents. (T-110) (Petitioner's proposed finding #17.) In addition to engaging in sexual intercourse in hotel rooms, his home and his boat, the Respondent drove Jill to an orange grove on a number of occasions where sexual intercourse and/or oral sex took place. (T-119, 120) On another occasion the Respondent took Jill to a wooded area where they had sexual intercourse. (T-113) Afterward, the Respondent gave Jill a key chain with his initials on it. (T-112) In addition to the gifts previously mentioned, the Respondent gave Jill a computer disc box and several computer discs for use in her computer class at school. (T-114) He also gave her some scuba gear for her use when he took Jill on a diving trip to Cow Sink. (T-114) (Petitioner's proposed finding #18.) The Respondent wrote Jill four short notes which he gave to her at school. (T-116; P-4) (Respondent's proposed finding #14.) The parties developed a strong relationship between themselves and Jill believed that she was in love with Respondent. (T-128, 133, 134) While the relationship was ongoing, the Respondent told Jill that he loved her, that he planned to divorce his wife and that he wanted to marry her and move to West Palm Beach. (T-102, 104, 105) The Respondent resigned from his employment with the Seminole County School Board on April 30, 1986. (T-151) (Petitioner's proposed finding #22) After Jill's disclosure of her relationship with the Respondent to law enforcement officers, the relationship quickly became known at Lyman High School and in her community. (T-124, 148; P- 10) (Petitioner's proposed finding #23) The resulting publicity put a great deal of stress on Jill's relationship with her family (T-125) and her fellow students. (T-124) She was ostracized at school. (T-124) Her graduation was put in jeopardy. (T-125) She was embarrassed at her senior prom. (T-125) Students booed her during graduation exercises at the end of the school year. (T-126) (Petitioner's proposed finding #24.) Dr. Hortense Evans testified in her expert opinion that the Respondent's effectiveness as an employee of the Seminole County School Board was seriously reduced as the result of his relationship with student Jilliana Holt. (T-145, 146) In her expert opinion, children are sent to school to receive an education, not to be sexually abused or exploited. (T-147) Respondent's conduct violates the trust which parents place in the school system to care for their children properly and professionally.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), F.S., and rules of the State Department of Education. DONE and RECOMMENDED this 2nd day of October, 1987, in Tallahassee, Florida. MARY CLARK 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 2nd day of October, 1987. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John A. Baldwin, Esquire Baldwin & Baum 7100 South Highway 17-92 Fern Park, Florida 32730 Karen Barr Wilde Executive Director Education Practices Commission Department of Education Room 418, Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether Petitioner has established just cause to terminate Respondent as an educational support employee.
Findings Of Fact Based on the evidence, the following facts were found: The superintendent for the School District has the authority pursuant to section 1012.27 to recommend the termination of any School District employee to the School Board. Further, the School Board has the authority to terminate and/or suspend support personnel without pay and benefits pursuant to sections 1012.22(1)(f) and 1012.40(2)(c). Mr. Lomonte has been employed with the School District since January 3, 2006, and was a bus driver for the School District's Transportation Department. As a bus driver, Mr. Lomonte is an "educational support employee," as defined by section 1012.40(1)(a), and is governed by the Collective Bargaining Agreement (SPALC Contract) between the School District and SPALC. The SPALC Contract requires "just cause" for the discipline of support personnel. Art. 7.10, SPALC Contract. On June 7, 2010, Charles Dailey (Mr. Dailey), the director of Transportation, West Zone of the School District, received a letter from a parent concerning Mr. Lomonte.3/ The letter complained that the bus driver had engaged in inappropriate behaviors. Specifically, the parent complained that Mr. Lomonte was asking the middle school female student what she wore to bed, grabbing her book bag, and telling her that she was pretty. The School District began an investigation into the complaint and took statements from some of the students who rode the bus driven by Mr. Lomonte. Based on its investigation, the School Board found just cause to terminate Mr. Lomonte's employment. The School Board presented the testimony of D.T., a 14- year-old girl, who rode the bus driven by Mr. Lomonte for the time period of April 2010 until June 2010. D.T. credibly testified that: Mr. Lomonte, on two occasions, had kissed her hand on leaving the bus; Mr. Lomonte often called her "beautiful," "pretty," and "queen of the bus"; Mr. Lomonte had invited her to his home, where he had a professional photography studio, to have her picture taken for Quincera, and told her that he had beautiful dresses that she could wear;[4] Mr. Lomonte had placed his hand on her thigh once when she had been wearing Capri pants; Mr. Lomonte had commented on her clothing, and the fact that she wore long pants, and asked her to turn-a-round so that he could see her; Mr. Lomonte would tell her that she "smelled really good"; and Mr. Lomonte would often stare at her. D.T. credibly testified that Mr. Lomonte's actions and words made her feel "uncomfortable" and "weird." The record shows the School District learned about D.T.'s allegations against Mr. Lomonte after he had been initially suspended as the bus driver. Mr. Lomonte's initial suspension occurred during its investigation based on the parent's June 7, 2010, complaint. The record shows that after Mr. Lomonte had been suspended off the bus in early June 2010, D.T. asked the substitute bus driver, Todd Thompson (Mr. Thompson), if he was going to be the new bus driver. D.T. explained to Mr. Thompson that Mr. Lomonte had made her feel uncomfortable based on his calling her "princess" and making suggestions that "she could come over to his house and he could take pictures of her." Mr. Lomonte's testimony that D.T. exaggerated or was untruthful because he had disciplined her on the bus was not credible. Mr. Lomonte testified that he had given D.T. a referral for "horse play" with a younger student. Yet, there was no evidence of this referral at the time it occurred, or that D.T. had ever been sanctioned based on Mr. Lomonte's referral. The only evidence that he had informed the School District that D.T. had been given a referral was before the School District's pre-determination hearing held on June 24, 2010. The School Board also brought forward the deposition testimony of five student witnesses, H.J., J.S., A.S., D.P., and T.J.B. All of these students were middle school-aged girls that rode Mr. Lomonte's bus during the 2009-2010 school year.5/ The testimony supports the allegation in the Petition that Mr. Lomonte asked H.J. and D.P. what they wore to bed. The record, however, is unclear and contradictory about the circumstances of the comments and when the comment or comments took place. Mr. Lomonte brought forward evidence showing that the middle school had a pajama day as part of its spirit week and that the comments may have occurred on pajama day. Similarly, some of the witnesses remembered Mr. Lomonte asking H.J. and D.P. together, others remembered him asking H.J. or D.P. on separate occasions. Although there was discrepancy in the circumstances, all of the witnesses remembered Mr. Lomonte asking H.J. and/or D.P. what they wore to bed. Even if Mr. Lomonte asked the question in the context of pajama day and in innocence, the question is inappropriate. The deposition testimony also supported the factual allegation that Mr. Lomonte called female students on the bus "pretty" or "beautiful." This finding was also supported by one of Mr. Lomonte's witnesses, E.F., that Mr. Lomonte would tell female students on the bus "you're pretty or you're beautiful." The deposition testimony with regards to the allegation that Mr. Lomonte showed a student an inappropriate picture on his cell phone and sent a picture to the student on her cell phone was not supported. D.P. testified that Mr. Lomonte showed her a cartoon figure showing its middle finger. Mr. Lomonte denied that he showed her a picture on his cell phone. The record was inconclusive, and no other evidence was offered to support the allegation of Mr. Lomonte showing an inappropriate picture on his cell phone to D.P. No evidence was presented that Mr. Lomonte sent any picture to a student. Thus, these allegations were not proven. The record did not support the factual allegation that Mr. Lomonte inappropriately touched the arms of the students who provided deposition testimony. The record did show that Mr. Lomonte pulled on H.J.'s sweat shirt to get her attention, but that he stopped once she asked him to. Finally, the record was not clear that that Mr. Lomonte stared at the female students through the rearview mirror. Many of the female students testified that they felt that Mr. Lomonte stared at them through the rearview mirror. Mr. Lomonte testified that he did not stare at the students and that he often wore sunglasses because his eyes were sensitive to light. Mr. Lomonte reasoned that because he wore dark sunglasses, the students could not testify that he was staring at them. The testimony from the students was that he sometimes wore sunglasses. Although the students "felt" he was staring at them, it is difficult to determine the witnesses' credibility from reading a deposition. One student, J.S., however, did offer unrebutted testimony that Mr. Lomonte had stared down her shirt on one occasion when she had worn a tank top. Notably, Mr. Lomonte, in his testimony, did not address the allegation by J.S. Based on Mr. Lomonte's conduct of calling young female students "beautiful or pretty" on the bus, it is understandable that the students would feel that he was staring at them. The allegation of staring at students, with the exception of staring down one student's shirt, is not established. Mr. Dailey credibly testified that in 2008 he had given Mr. Lomonte a verbal warning about telling a female student that she was pretty and offering to take the student's picture. Mr. Dailey testified that he made it clear to Mr. Lomonte that those comments were totally inappropriate. Further, Mr. Dailey credibly testified that Mr. Lomonte understood the warning. At hearing, Mr. Lomonte admitted that he realized that he made a mistake about talking to D.T. about his photography business. Mr. Lomonte, however, attempted to explain that he understood that Mr. Dailey only prohibited him from talking about the photography business, but did prohibit him from answering D.T.'s questions about Lomonte's photography business. Mr. Lomonte's attempt to parse his understanding about Mr. Dailey's warning is not credible. Mr. Lomonte presented the testimony of S.A., S.G.F., E.M.F., and A.F. concerning the bus. The testimony showed generally that Mr. Lomonte dressed professionally. The students testified that they did not see Mr. Lomonte do anything improper. However, the facts showed that the students were often not in a position to hear whether or not Mr. Lomonte made inappropriate comments or see any inappropriate actions. For example, S.A. admitted that she was not on the bus all of the time that H.J., D.P., A.S., and J.S. were on the bus. Similarly, A.F. testified that she did not hear Mr. Lomonte call any student pretty or beautiful, but admitted that she could not hear what Mr. Lomonte was telling D.T. from her bus seat. The record showed that despite his verbal warning in 2008, Mr. Lomonte received good evaluations as a bus driver and was effective in his job. Mr. Lomonte testified under oath that he understood English and that he understood the proceedings against him and understood the testimony being offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding that just cause exists for termination of Mr. Lomonte's employment. DONE AND ENTERED this 10th day of February, 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 10th day of February, 2011.
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon 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 in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 6th day of December, 2007.
The Issue Whether just cause exists to terminate Respondent from his employment with the Pinellas County School Board.
Findings Of Fact On January 23, 2006, Respondent was hired by Petitioner to work as a school bus driver. The position of bus driver is covered by the 2008-2011 Collective Bargaining Agreement between The School Board of Pinellas County, Florida, and SEIU/Florida Public Services Union, CTW-CLC (Collective Bargaining Agreement). Respondent's employment disciplinary history with Petitioner is as follows: 12/07/06 Respondent received a "Conference Summary" for uncorrected job deficiencies and for making inappropriate remarks to students; 05/06/08 Respondent received a "Caution" for making inappropriate remarks to students; 05/22/08 Respondent received a "Reprimand" for failing to comply with board policy, State law, or the appropriate contractual agreement; 01/25/10 Respondent received a "Caution" for excessive absenteeism; 03/26/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus; 10/04/10 Respondent received a "Conference Summary" for insubordination; 12/02/10 Respondent received a "Caution" for making inappropriate and disparaging remarks to a student; and 12/14/10 Respondent received a "Caution" associated with an accident/crash that he had while operating his assigned school bus. During Respondent's term of employment with Petitioner, his performance appraisals have been satisfactory with the exception that on January 20, 2009, Respondent was advised that he needed to improve his punctuality; and on January 25, 2010, he was told that his work attendance was unsatisfactory. The passenger compartment of the school bus operated by Respondent during all times relevant hereto is typical of most school buses. There are two columns of seats separated by an aisle for ingress and egress that runs the length of the bus. Each column of seats is composed of approximately nine bench seats. The bus operated by Respondent was equipped with an operable audio/video camera. The audio/video camera was mounted at the front of the bus' passenger compartment and was positioned such that it simultaneously recorded audio and images of the passengers and of Respondent while he operated the bus. The bus also has a mirror mounted forward of the driver and above his head. When viewed from the seat of the driver of the bus, the overhead mirror allows the driver to monitor some of the activities of the passengers. During all times relevant hereto, Respondent was operating his assigned bus on the roads of Pinellas County, Florida. On February 8, 2011, student A.D. was a passenger on the bus operated by Respondent. School had been released for the day, and Respondent was transporting the students to their appointed stops. A.D. was enrolled as a middle school student and the other 30 or so students that were on the bus on February 8 and 9, 2011, appear from the audio/video recording to be of an age similar to that of A.D. On February 8, 2011, A.D. was seated in the third row nearest Respondent and was, for the most part, positioned such that his upper torso was angled towards the rear of the bus. At approximately 4:22 p.m., A.D. is seen on the video making a throwing motion with his right arm. Within a second of A.D. completing the throwing motion, Respondent removed the sunglasses from his face and in an agitated voice said, "(student's name) what did I say?" Simultaneous to making the statement, Respondent also spread his arms as an added gesture of frustration. Respondent's facial expression further reflected his feelings of frustration and exasperation. Approximately 14 seconds after calling out to A.D., Respondent picked up the microphone to the bus' public address system and announced the following: Respondent: Hey! (1 second pause) Respondent: If anybody sees (A.D.) throwing paper, you have my permission to knock him out! According to Mr. Thomas Hagewood, who works for Petitioner as manager of the transportation department, a student's assigned school determines appropriate disciplinary action when a student commits an infraction while riding on a bus operated by Petitioner. Employees, like Respondent, that are assigned to Petitioner's transportation department are not responsible for disciplining students. Respondent testified as follows regarding his rationale for authorizing the students on the bus to strike A.D.: Respondent: Well, I felt like I had to just bring A.D. down a peg because, like I said before, in the beginning of the year--this has been an ongoing problem. I've written him up, I've gone to the school, you know, I've gone to my FOS (Field Operations Supervisor) and I couldn't get anybody to help me get this child under control. It came to a point where we had a sixth grader bullying 50 kids on the bus by throwing pencils, crayons, paper, you name it, snot rags. It was just that particular day where even after I told him before the bus pulled out of the bus circle--I asked him not to throw anything, you know, and he did not listen to me. He got on the bus. He continued to throw stuff. I could hear the girls in the back asking A.D. to stop, you know. I just thought that if I embarrassed him a little bit that it would work, you know, that he would just stop for that moment, you know, just to leave everybody alone. Counsel: So you intended to embarrass him? Respondent: I intended to get his attention. Counsel: Okay. You just said "I thought if I embarrassed him." Respondent: Well, okay. Yeah. I just thought if I brought the attention on him that, you know, he would stop doing what he was doing. Although Respondent testified that he had previously "written A.D. up" for misconduct and complained repeatedly to school officials about A.D.'s behavior, Respondent did not produce any evidence to corroborate this testimony. Additionally, Petitioner reviewed its files and did not locate any documentation to substantiate Respondent's claim that he complained about A.D.'s behavior prior to February 8, 2011. Respondent's testimony regarding his complaints about A.D. is not credible. Immediately after Respondent finished announcing to the students that it was permissible to "knock out" A.D., several girls can be heard screaming in response to Respondent's statement, and a male student in a grey jacket is seen rising from his seat and moving towards A.D. in a provocative manner while stating something to A.D. that is inaudible. The student in the grey jacket returned to his seat without incident. A few moments later, a male student in a white hat, who was initially positioned a few seats behind A.D., is seen on the video making his way towards A.D. The student in the white hat eventually positions himself in the seat diagonal from A.D. At approximately 4:24 p.m., the student in the white hat is seen on the video standing over A.D. and throwing a punch at A.D. that appears not to have been intended to strike A.D. After throwing the counterfeit punch, the student in the white hat returned to his seat and pointed his right index finger at A.D. It is not decipherable from the audio what, if anything, the student in the white hat said to A.D. while gesturing with his finger. Over the next 30 seconds or so, the student in the white hat is seen on the video poking A.D. Both students are seated while this is occurring. At approximately 4:25 p.m., the student in the white hat rises from his seat, positions himself in a fighting stance while standing over A.D., and throws a right hand punch that strikes A.D.'s head. Immediately after being punched, A.D. sinks into his seat and disappears from the view of the camera. Approximately 15 seconds after A.D. was punched, a female student in a grey jacket makes her way from the back of the bus and leans over A.D. After leaning over A.D. for approximately three seconds, the female student walks back to her seat. It is not known what, if anything, the female student said to A.D. Approximately ten seconds later, a female student in a cream-colored jacket rises from her seat near the rear of the bus, walks down the aisle, and positions herself in the seat across from A.D. The student leans over A.D. and can be seen patting A.D. in such a way as to suggest that she was providing A.D. with comfort and support. After several seconds, the female student in the cream-colored jacket rises and returns to her seat at the back of the bus. Throughout the remaining portion of the video from February 8, 2011, A.D. remains crouched down in his seat and hidden from the video, except for a momentary instance when he rises from his seat and throws a punch at the student seated behind him. Respondent did not react to A.D. having thrown a punch at another student because Respondent, at the time the punch was thrown, was driving the bus while using his cell phone. Additionally, at other times on February 8, 2011, students on the bus were leaving their seats, walking up and down the aisle, and throwing objects about the bus. These activities went unnoticed by Respondent because he was distracted by talking on his cellular phone while operating the bus. The following morning, Respondent, while transporting the students to school, made the following announcement over the public announcement system: Respondent: Hey, real quick. Who would ya'll say the main person is that is always throwing stuff on this bus? Students: (Students yell out A.D.'s name) Respondent: Okay. They are probably going to question ya'll since he isn't on the bus. He probably told his parents about something trying to get me fired or something, you know whatever. Student: We got your back Mr. Thomas! Respondent: Alright. A.D. sustained physical injuries and sought medical treatment as a consequence of receiving the punch to his head. A.D. reported the incident to his mom who was extremely upset by the fact that Respondent, as a school board employee, would encourage students to engage in acts of violence. At 5:05 p.m., on February 8, 2011, A.D.'s mom called Respondent to report the incident. After the incident of February 8, 2011, A.D. was afraid to ride the bus operated by Respondent. A.D.'s mother moved her place of residency and transferred A.D. to another school because she wanted to "get away from that area" where she and A.D. lived at the time. The student that struck A.D. was arrested and charged with battery. The offending student successfully completed the juvenile diversion program. The mother of the student that struck A.D. was also outraged by Respondent's conduct of encouraging students on the bus to engage in acts of violence. Around February 8, 2011, Respondent was going through a stressful domestic situation related to him gaining custody of his son. As a consequence of his domestic instability, Respondent was experiencing a great deal of subjective emotional distress to the extent that he felt like a "bottle about to pop." As previously noted, Respondent, on December 2, 2010, was issued a letter of caution for using inappropriate language while on the bus with middle school students. As a part of the process for addressing the incident of December 2, 2010, Respondent agreed to voluntarily attend a student management class that is tailored towards bus drivers. A confluence of factors contributed to Respondent not taking the student management class. First, Respondent missed work for a period of time due to a workers' compensation injury. Second, the school district was closed several weeks for winter break. Third, due to a rotation of managerial personnel by Petitioner, the individuals that were aware of Respondent's request to take the student management class were given new assignments such that they no longer supervised Respondent. Finally, and most importantly, Respondent showed no initiative upon his return to work in taking the steps necessary to inform his new superiors about his desire to enroll in the student management training course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, dismiss the charge against Respondent, Eric F. Thomas, Jr., which alleges that Respondent violated Board Policy 4140 A.7. Petitioner terminate Respondent's employment as a school bus driver as a consequence of Respondent's violation of Board Policy 4140 A.9a., A.13., A.19., and A.24. The violation of any one of these subsections, standing alone, is sufficiently severe so as to warrant Respondent's termination from employment as a school bus driver. Petitioner dismiss the charge against Respondent which alleges that Respondent violated Board Policy 4140 A.21. (If Petitioner disagrees with the recommendation that Respondent should be terminated, then it is RECOMMENDED that Respondent, consistent with Petitioner's system of progressive discipline, be issued a letter of caution for operating his bus while using his cellular phone.) DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of May, 2012.
The Issue The issue addressed in this proceeding is whether Respondent committed any acts which would subject him to termination of employment as an annual contract teacher of the School Board of Escambia County.
Findings Of Fact In 1988, Respondent, David Madison, received his degree in elementary education. In 1989, Mr. Madison worked as a third grade elementary school teacher at Montclair Elementary School in Escambia County, Florida. Later during the school year, Mr. Madison transferred to the fourth grade drop out prevention program at Montclair Elementary School. While at Montclair, Mr. Madison received excellent reviews of his teaching ability and received the superintendent's recommendation for renewal of his annual contract for the 1990- 91 school year. The school board followed the recommendation of the superintendent and renewed Mr. Madison's annual contract. The term of Mr. Madison's contract ran from August 20, 1990 through June 12, 1991. Mr. Madison's contract provided that a teacher could not be dismissed from his or her employment "except for just cause as provided in Section 231.36(1)(a), Florida Statutes." The contract also incorporated by reference the collective bargaining agreement which had been negotiated between the school board and the Escambia Education Association for 1990-1993 (the master contract). Portions of the master contract governed and in some cases restricted the type of conduct which could be recognized as subjecting a teacher to discipline, as well as, the procedure and type of discipline, including dismissal or termination, which might be imposed regardless of whether that discipline arose out of violations under the terms of a teacher's contract or had its basis in Chapter 231, Florida Statutes. The master contract provided in Article II, Section L as follows: L. The Board shall not discriminate against any member of the unit because of marital status, religion, race, sex, lifestyle, national origin, age or medical or physical handicap as a condition of employment or continued employment. The master contract also provided at Article V, Section E as follows: E. No action against a teacher shall be taken on the basis of a complaint by a parent, student, or other individual unless the matter is first reported to the teacher in writing by the principal within ten (10) days of the complaint. No records shall be kept concerning anonymous complaints. and at Article XXVI, Sections A and B: Disciplinary Action shall be defined as any action that includes: warning conference, verbal reprimand, written reprimand, suspension with pay, suspension without pay, and/or dismissal. Any disciplinary action shall be administered only by the appropriate immediate administrator. All disciplinary action shall be progressive, fair, and non- discriminatory. Disciplinary action which involves the more severe discipline of written reprimand, suspensions or dismissal shall be for proper cause. In August 1990, Mr. Madison was hired to teach second grade at the Helen Cairo Elementary School. Helen Cairo Elementary School was a new elementary school opening in Escambia County and had a student population of about 725 students for the 1990-91 school year. Mr. Madison was hired along with a group of teachers as additional staff for the school since student enrollment greatly exceeded that which was predicted for the opening of the school. The school year had been in session for approximately 3 to 4 weeks before Mr. Madison began teaching at Helen Cairo Elementary School. The students which were selected for Mr. Madison's second grade class came from other second grade classes which had already been in session. Mr. Madison's class consisted of approximately 23 or 24 students. The Petitioner met with the students and parents prior to beginning his teaching at Helen Cairo and established a rapport with approximately ten sets of parents out of an approximate 20 student class. November 20 was Mr. Madison's birthday. In 1990, Mr. Madison's birthday fell on Thursday, the middle of the work week. Mr. Madison would be 25 years old. Because Mr. Madison had to teach the day after his birthday, he elected not to celebrate his birthday on November 20 but would celebrate the following Friday evening since he did not have any teaching duties over the weekend. On the evening of November 21, 1990, Mr. Madison celebrated his birthday at Chan's and McGuire's, two of the local bars in Pensacola. Mr. Madison, in youthful exuberance, overindulged in alcoholic drink. To the best of Mr. Madison's recollection of his birthday celebration, which memory is very limited, he had at least 5 or 6 shooters during the evening of the 21st. Around 10:00 p.m., in a highly intoxicated state, although driving reasonably well, Mr. Madison left McGuire's and proceeded home. On the drive home, Mr. Madison had to urinate and stopped in the parking lot of a bar known as the Chimney. A few parking spaces away from where Mr. Madison parked were two undercover police officers in an unmarked car. The police officers were part of the Vice and Intelligence Division of the Pensacola Police Department. The police officers had stopped at the Chimney because it is an area allegedly known for illegal sexual transactions, mostly involving homosexual males. Mr. Madison exited his vehicle and made a beeline for the woods which are located close to the Chimney. He walked by the unmarked police car and around the corner of the Chimney's building on his way to the woods. Within a few seconds of Mr. Madison walking by the unmarked police car, Officer Paul Kelley exited the police car in order to follow Mr. Madison to see if he could catch him in some crime. The officer's egress from the car occurred well within Mr. Madison's hearing and Mr. Madison more than likely knew someone was following him through the parking lot and around the corner towards the woods. No other people were in the area and the area could not be seen from the more public areas of Chimney's surroundings. The police officer was dressed in plain clothes and judging from his appearance at the hearing would have fit the stereotypical image of a "pretty" male homosexual. Mr. Madison went into the woods, relieved himself, and came back out of the woods. As Mr. Madison left the woods he saw the police officer standing by himself watching him obviously waiting for Mr. Madison to exit the woods. Mr. Madison stopped about 10 feet away from the officer. The officer and Mr. Madison exchanged eye contact back and forth. During the exchange, Mr. Madison rubbed the outside front of his pants in the area of the genitals. The officer testified that such behavior is a common signal of interest among homosexuals and is part of the homosexual lifestyle and way of communicating with each other. The police officer continued to exchange looks with Mr. Madison. The police officer did not move away from Mr. Madison and allowed him to approach. Mr. Madison walked over to the police officer, and they exchanged greetings with each other. Clearly such behavior on the police officer's part was an invitation by the police officer to Mr. Madison to make further overtures. After all the police office was there in an attempt to entice such sexual propositions in order to determine if any crime, such as prostitution, would ensue. Mr. Madison again began rubbing the front of his pants in the area of his genitals while the officer stood watching. Mr. Madison then reached over and touched the officer's clothing in the area of his genitals. The officer took a step back, said no and Mr. Madison desisted in his advance. To the officer, Mr. Madison looked confused and surprised by the officer's response. Mr. Madison immediately left and returned to his vehicle to leave. The officer followed Mr. Madison back towards his vehicle and indicated to his partner, by pointing at Mr. Madison, that Mr. Madison should be arrested. Mr. Madison was subsequently arrested on a first degree misdemeanor charge of simple battery which is not, in and of itself, a crime involving moral turpitude. In that regard, none of the above facts support a finding that Mr. Madison is an immoral person or committed an immoral act. Indeed, the best that can be said about the above facts is that Mr. Madison attempted to interact socially with someone he reasonably believed was of the same persuasion. His behavior was common among the homosexual community as a means of communicating with another homosexual. It was the officer who had followed Mr. Madison and stood waiting for him when no one else was around. In this case, the officer's consent was non-verbally communicated to Mr. Madison by a police officer who was fully cognizant of the impact his own action or lack of action would have. Mr. Madison desisted from his advances as soon as the officer's consent was withdrawn. Mr. Madison's actions did not involve a battery, sexual battery, lewd and lascivious conduct or any other criminal activity. The incident involved no children, did not occur during working hours, and did not involve or have any relevance to Mr. Madison's ability to teach or otherwise utilize his teaching skills. Unfortunately, the battery arrest was picked up by the local newspaper, and some details from the police officer's report were published in the local newspaper. Articles involving the arrest incident ran at least 3 times in the local newspaper on December 1, 1990, January 17, 1991 and February 8, 1991. Mr. Madison, after taking approximately 9 days off, returned to teaching his second grade class. During the time he taught his students, he could discern no impact on the children and their progress in his class. Likewise, there was no impact on Mr. Madison's ability to teach his class. In fact, teaching was a release from the stress created by the publication and subsequent reaction of a few parents who did not have children in his class. On February 7, 1991, Mr. Madison pled no contest to the simple battery charge, received six months probation and paid a $150 fine. Adjudication was withheld. The probation was terminated after three months. Mr. Madison pled to the charges because he could not remember any of the incident the police officer claimed happened and could not admit or deny any of the allegations of the officer. However, Respondent's entry of a plea of no contest does not constitute proof of immorality, moral turpitude or lack of moral character when such characteristics are absent from the underlying facts of the charge to which he is pleading. Apparently, based on the articles in the newspaper, some of the parents at Helen Cairo School became aware of the incident involving Mr. Madison's arrest. The parents who reacted did not necessarily have students in Mr. Madison's class. Parental reaction was evenly divided among those who cared to react. Some parents were supportive, and others were not supportive. Intolerant, incorrect and prejudicial statements such as "we don't want those type of people teaching our children" and "homosexuals are child molesters," were communicated to the principal by these unsupportive parents. For the most part, the negative comments about Mr. Madison involved not the criminal charge, but the homosexual nature of the event. In essence, it was a reaction of total intolerance on those parents' part as to homosexuality. However, even with these intolerant parents, the evidence did not support a loss of parental support for the school save for one or two very vocal persons of morality who engaged in a campaign to have Mr. Madison terminated because they believed he was an immoral person and a potentially bad influence to children. These two parents kept things stirred up in the sense that the school board had to deal with the two parents. Neither parent had a child in Mr. Madison's class. Mr. Madison taught his second grade class until February 12, 1991, when he was suspended without pay from his teaching position. On March 25, 1991, Mr. Madison was terminated from his position as a school teacher. Before this incident, Mr. Madison had never received any disciplinary action during his time as a teacher in Escambia County. Mr. Madison's discipline was based solely on the notoriety of the case and not necessarily on the fact that a criminal charge had been filed resulting in a plea. The evidence did not demonstrate that the overall reputation of the school had been so diminished by Mr. Madison's conduct that it could no longer deliver an appropriate instructional program to the children at the elementary school. In fact, the evidence demonstrated that the school did deliver such instructional programs since the school students all scored within the average of the county. Similarly, other than some hearsay testimony about what a substitute told the principal, there is no credible evidence to suggest that Mr. Madison's ability to teach had been impaired or that the students in Mr. Madison's class had in any way had their academic potential affected. There was also no evidence that the students at Helen Cairo had lost respect for Mr. Madison or otherwise would refuse to submit to his authority. In fact, the better evidence in relation to student attitudes was that Mr. Madison's students were very concerned about his well being, cared a great deal about their teacher and wanted him to return. Finally, the evidence affirmatively demonstrated that Mr. Madison's ability to teach was not impaired by the events of November 21, 1990 or the subsequent agitation of a few parents. The evidence only showed that Mr. Madison felt embarrassed and down about what had happened. However, as a well adjusted person, he handled those feelings, went on with his life and performed his duties until prohibited from doing so by the school board. In short, none of the charges in the Petition for Dismissal have been supported by the evidence. Additionally, discipline based on a persons lifestyle is clearly prohibited by the master contract. Moreover, the Board failed to follow its own policy and contractual agreement regarding progressive disciplinary penalties. Mr. Madison, therefore, is entitled to reinstatement under the terms of his annual contract with back pay to February 12, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondent with back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23 and 24 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 15 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the first sentence of paragraph 16 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 17 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 25 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was legal argument. The facts contained in the first sentence of paragraph 26 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 1, 2, 4, 9, 26, 27, 28, 29 and 30 of Respondents' Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of Respondents' Proposed Findings of Fact are subordinate. COPIES FURNISHED: Joseph L. Hammons, Esquire 17 W. Cervantes Street Pensacola, FL 32501 Mark S. Levine, Esquire 245 E. Virginia Street Tallahassee, FL 32301 Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Pete Payton Superintendent Escambia County School Board Post Office Box 1470 Pensacola, FL 32597
Findings Of Fact Respondent holds Florida teaching certificate number 310960, covering the areas of elementary education, social studies, metal work, and administrative supervision. The certificate is valid through June 30, 1995. Respondent was employed as a teacher in the Duval County School District in 1980. In August of 1991, Respondent resigned from the school system. Following his resignation, Respondent was placed on the Duval County roster of available substitute teachers. Respondent was serving as a substitute teacher on February 21, 1992, at Fort Caroline Elementary School in Duval County. He was assigned to a combined fourth/fifth grade Special Learning Disabilities (SLD) class. During the class, an incident occurred involving Respondent and a fourth grade student, M.A. Student M.A. had previously been subjected to oral surgery, following a recreational accident where he suffered the lost of a front tooth. The tooth had been re authorities by written note on February 18, 1993, of this matter and the need to restrict M.A.'s activities to prevent further injury to M.A.'s mouth. When Respondent assumed responsibility for the class on February 21, 1993, he was aware of M.A.'s condition, having been informed of that fact by the teacher's assistant, Ms. Majorie Ring. When Respondent assumed responsibility for the class on February 21, 1993, he had taken a prescribed tranquilizer, and in his words, felt "relaxed". Ms. Ring, who had been conducting class activity, left the room to work in a different classroom. Respondent noticed that the students were misbehaving, running around the room and talking. At a loss to control the class, Respondent began reading aloud to the students. M.A.'s assigned seat was near the teacher's desk. He left the desk and crawled under the front of the teacher's desk to retrieve a pencil. Respondent asked the student to come out from under the desk. When M.A. refused to come out, Respondent grabbed M.A.'s feet which were protruding out from under the desk. Respondent pulled M.A. out from under the desk. As Respondent pulled M.A. from under the desk, the back of M.A.'s head hit the underside of the front wall of the desk. The force with which the back of M.A.'s head hit the desk resulted in driving M.A.'s face into the floor and inflicting a severe injury upon the child's mouth. Following the impact of M.A.'s face against the floor, evidence of his injured mouth was immediate. His mouth began bleeding almost immediately. M.A. began crying and was visibly upset. Other students went to the next portable classroom and found Ms. Ring who accompanied M.A. to the school office. Ms. Ring estimated that she was absent from the room approximately 15 minutes before the children summoned her back with news of M.A.'s injury. M.A.'s mother was notified and immediately transported M.A. to the dentist where she learned that M.A. was now missing two front teeth: the tooth that had previously been re tooth was later found in the classroom and that tooth was not re-implanted. Because of the severity of the injury to M.A.'s mouth, extensive repair will be required. In the interim, M.A. has a gap in the front of his mouth where the two teeth were formerly located. The lost of the two teeth has changed M.A.'s physical appearance. His self-esteem has been affected, as evidenced by his reluctance to smile for school pictures taken after the incident. Other children have also teased M.A. about his appearance. Under the measures contained in the discipline policy at Fort Caroline Elementary School, student misconduct is to be dealt with in a progressive fashion by giving students a verbal warning first, then time out, then a referral to the principal's office. Only a principal or principal's designee may administer corporal punishment at Forth Caroline Elementary School. Students should not be grabbed or sized by teachers simply to stop misbehavior. A teacher's restraint of a student's action by placing hands on the student is appropriate only to prevent that student from injuring himself or others. Even on those occasions, use of physical force to control a student by pulling or dragging the student is not appropriate. As established by testimony of the school principal, Respondent's action of dragging M.A. from under the desk was unnecessary. Respondent should have called for assistance. As a result of the incident with M.A., Respondent has been removed from the list of authorized substitute teachers. Respondent's inability to control the class and his conduct with regard to M.A. establishes his lack of effectiveness as a substitute teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the first, second, and third counts of the Administrative Complaint, and suspending Respondent's teaching certificate for a period of two years, followed by a probationary period of three years upon reasonable terms and conditions to be established by Petitioner, including: A requirement that Respondent make arrangements for his immediate supervisor to provide Petitioner with quarterly reports of Respondent's performance, including compliance with school rules and school district regulations and any disciplinary actions imposed upon Respondent; A requirement that Respondent make arrangements for his immediate supervisor to provide Petitioner with a true and accurate copy of each written performance evaluation prepared by his supervisor, within 10 days of issuance; A requirement Respondent successfully complete two college courses or equivalent in-service training courses in the area of disciplinary techniques and classroom management, with progress and completion to be monitored by Petitioner. A requirement that Respondent submit, prior to reemployment as a licensed educator, a clearance from a licensed psychiatrist, psychologist or mental health counselor, certifying that Respondent is capable of performing his duties in a satisfactory manner and is capable of interacting in an acceptable manner with students. The mental health professional evaluating Respondent shall be apprised of the facts of this proceeding prior to conduct of such evaluation. DONE AND ENTERED this 23rd day of September, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-00045 In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings Accepted. Rejected, relevance. 3.-11. Accepted. 12. Rejected, it is not clear that two teeth were actually knocked out by the incident. Two teeth were later found to be missing. 13.-22. Accepted. 23. Accepted in essence. Respondent's proposed findings 1.-3. Accepted, but not verbatim. Rejected, unnecessary. Accepted, but not verbatim. 6.-8. Rejected, relevance. 9. Rejected, legal conclusion not a factual finding. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Orion C. Likins 2144 Southside Boulevard Jacksonville, Florida 32216 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
