The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School 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 Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
The Issue The issue in this case is whether Respondent, Mary Chung ("Respondent"), committed the alleged conduct and, if so, whether Petitioner, Lee County School Board ("School Board"), has just cause to terminate her employment as a food service worker.
Findings Of Fact Respondent is a food service worker at Lehigh Senior High School ("Lehigh") in Lehigh Acres, Lee County, Florida. She was employed in this capacity for the 2003/2004 school year. Respondent was present for work at Lehigh on May 21, 2004. Respondent was scheduled to work from 6:15 a.m. to 2:15 p.m. on this date. This had been her work schedule all year. On May 21, 2004, Respondent reported for work at least 10 minutes late. She arrived at work at approximately 6:25 a.m. Respondent had not called in to notify anyone that she would be late to work that morning and did not advise or explain to her supervisor the reason for her tardiness. Accordingly, Respondent's tardiness on the morning of May 21, 2004, was not excused by her supervisor, Carol Lewis ("Lewis"), who was the food service manager at Lehigh. Respondent and the other employees in the kitchen are given rotating assignments. They rotate to new assignments every two weeks. During the time period which included May 21, 2004, one of Respondent's responsibilities was to open cans of fruit. In accordance with her assigned duties, upon Respondent's arrival in the kitchen on May 21, 2004, Respondent began opening cans of fruit. Lewis approached Respondent while she was opening the cans and directed her to take two coffee pots to the school's media center for a staff appreciation breakfast. It was not unusual for Lewis to direct workers to stop the tasks they were working on to attend to other tasks that needed to be done. In fact, other food service workers in the kitchen that morning were helping with preparations for the staff breakfast in addition to their other assigned tasks. Respondent first ignored Lewis's request, and when directed again by Lewis to move the coffee pots, Respondent told a fellow employee, Lucy Roan ("Roan"), to move them. Lewis overheard Respondent's remark to Roan and corrected her by saying that she wanted Respondent to move the pots. Respondent then proceeded to where the pots were located and indicated to Lewis that she could not lift them onto the cart that she was to use to take them to the media center. According to Respondent, the reason she could not lift the coffee pots and place them on the cart was because of a problem with her foot. Lewis then put the coffee pots on the cart for Respondent and, again, directed Respondent to take them to the media center. When Lewis came back by the area a few minutes later, Respondent had still not taken the coffee pots to the media center. Lewis then directed Respondent to leave the school and said Respondent was fired. Lewis reported the incident to Ronald E. Davis ("Davis"), the principal of Lehigh during the 2003-2004 school year and at the time of the incident. Davis met with Respondent about the incident and gave her a written reprimand dated May 26, 2004. The reprimand was delivered to her on May 28, 2004. The reprimand indicated that Davis was also recommending that Respondent be dismissed. Davis contacted Georgianna W. McDaniel, director, Personnel Services ("McDaniel"), regarding the May 21, 2004, incident. McDaniel advised the principal to forward documentation regarding the incident to Personnel Services. McDaniel has certain responsibilities with regard to employee discipline. She counsels supervisors and administrators regarding appropriate disciplinary action; she suspends employees (with pay) when recommended by the superintendent; and she acts as the predetermination conference administrator. On or about June 1, 2004, Davis forwarded the May 26, 2004, letter of reprimand that had been given to Respondent to the School District's Personnel Services office. He also sent four written statements from the food service manager and three food service workers who were present in the kitchen when the incident involving Respondent occurred. These statements were written at Davis' direction A predetermination conference was scheduled for July 2, 2004, to give Respondent an opportunity to respond to Davis' recommendation for her dismissal based upon the incident on May 21, 2004. Respondent was notified of the conference by McDaniel by certified letter dated June 23, 2004. Respondent attended the predetermination conference and was given an opportunity to address the complaint filed by Davis. However, the matter was not resolved, and the School District superintendent recommended that Respondent's employment as a food service worker be terminated. The School Board met on August 12, 2004, to consider the Petition. At that meeting, the School Board suspended Respondent without pay and benefits pending receipt of the recommended order of the Administrative Law Judge. Prior to the May 21, 2004, incident, Respondent had experienced work-related problems and/or areas of concern while working as a food service worker. These problems had been discussed with Respondent and documented in her record. On May 9, 2002, Respondent was put on Procedures for Improvement by her then assistant principal, James Buchanan. Procedures for Improvement is a tool used by the School District to notify employees of unacceptable conduct and to give them an opportunity to correct their behavior and desist in any further conduct of that nature. In Respondent's case, the May 9, 2002, Procedures for Improvement noted the following specific deficiencies in Respondent's behavior: "Employee refused to leave area to discuss a problem/situation with the supervisor." The desired improvement in her behavior was: "1) Employee will interact appropriate [sic] with supervisor; 2) Employee when asked to go to an area by a supervisor will go, and follow any other directives by a supervisor; [and] 3) Employee will conduct herself properly with co-workers." Respondent was advised she could achieve this desired result as follows: "Employee will do what is told of her to do by a supervisor. Do the work that is assigned to her and complete it in a timely manner." Her success in reaching the desired result would be judged as follows: "No further incidents of refusing to go to a private area to talk out differences. Employee will have no other incidents with co-workers and supervisors." Respondent was also notified in her 2003-2004 Performance Assessment that she was deficient in certain areas and that she needed to "focus" on the following areas in the future: "6) Is punctual in attendance; 8) Exhibits dependability; 11) Exhibits positive attitude; 14) Has good rapport with others; and 15) Accepts criticism constructively." Her supervisor also noted in the comments section that she: "Calls in sick or late too much. Not dependable at all — Gripes about others or duties." She also noted that as of the date of the Performance Assessment (March 2004), Respondent had been absent for 231 hours (or 33 days) and tardy 15 times. Lewis prepared Respondent's 2003/2004 Performance Assessment. It was her responsibility as the food service manager to prepare an annual Performance Assessment for all the food service workers. Lewis prepared the Performance Assessment on March 24, 2004, and reviewed it with Respondent on March 30, 2004, the same date that Respondent signed the Performance Assessment. As a food service worker, Respondent was considered a "10-month employee." She did not work during the summer months. Her last day of work for the 2003-2004 school year was Friday, May 28, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment as a food service worker with the Lee County School District. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 3rd day of November, 2004. COPIES FURNISHED: J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Mary Chung 2147 Gulfside Village Drive Lehigh Acres, Florida 33972 Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable John Winn Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue At issue herein is whether or not the Respondent School Board of Dade County's reassignment of the Petitioner based on an alleged pattern of disruptive behavior in the educational program should be sustained.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. During September, 1978, Victor John Cecchi was transferred from Miami Springs Junior High School to the Jan Mann Opportunity School North. Charles W. Bales, the principal of Miami Springs Junior High School appeared at the hearing and testified that the Petitioner was transferred based on an extensive pattern of "disruptive behavior in the educational program which deprived other students in the program of the full benefits of the educational system." According to principal Bales, the transfer to the Jan Mann Opportunity School North is one where the Opportunity School provides a more controlled atmosphere, smaller classes, more direct supervision which enables a "problem child" to get the benefits of the Dade County educational program. It is eventually the goal of the Opportunity School to reintegrate the "problem child" back into the regular school system so that he is mainstreamed back into the full academic process. During the period October 4, 1977 through the assignment in September of 1978, Petitioner had been referred to the principal's office 35 times for referrals due to disruptive behavior. Principal Bales testified in detail respecting the various incidences by the Petitioner wherein he had been involved in an extended pattern of disrupting classes, leaving the school campus without permission, engaging in altercations with other students and destroying the personal property of others. During these incidences, petitioner was at times returned to the school campus by truant officers and officers from the Miami Springs Police Department While the Petitioner, through his father, does not dispute the fact that he was referred to the principal`s office based on a pattern of disruptive behavior, Petitioner requested that his son be reconsidered for reassignment back in the normal school program at Miami Springs Junior High School. In this regard, testimony reveals that the Petitioner has attended the Jan Mann Opportunity School for a total of only three days since his reassignment to the center. Testimony reveals further that the school system through its Opportunity School affords "problem or disruptive students" opportunity to reacclimate themselves through the process by attending the Opportunity School which provides a different setting. For example, the classroom setting is very individualistic and the number of students range from eight to twelve. Special vocational programs are offered and the pupil to counselor ratio is greater in the Opportunity School. For these reasons, and based on the fact that the Respondent has afforded Petitioner numerous occasions within which he was allowed to correct his disruptive pattern while attending the Miami Springs Junior High School, I shall recommend that the Respondent's reassignment of him to the Jan Mann Opportunity School be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the petition filed herein be dismissed. DONE and ORDERED this 27th day of August, 1979, in Tallahassee, Florida. COPIES FURNISHED: Richard Cecchi 331 Swallow Drive Apartment 17 Miami Springs, Florida 33166 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33013 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979.
The Issue Did the Respondent inappropriately touch students while employed by the Taylor County School Board? Did the Taylor County School Board follow a program of progressive discipline in this case? Was the Respondent grossly insubordinate by continuing to touch students after being warned to cease such conduct? Was the Taylor County School Board justified in suspending the Respondent without pay pending the outcome of an administrative hearing?
Findings Of Fact The Respondent, Jeff Silvers, was employed by the Taylor County School Board (the Board) as a science teacher at the Taylor County Middle School (the school). He had been an employee of the Board for several years. The Board was party to a contractual agreement with the Taylor County Education Association, FTP-NEA. On or about September 14, 1995, the Petitioner became aware that two female students had complained about Silvers rubbing their shoulders, touching their hair, and making an off color remark to them. The matter was brought to the attention of the Dean of Students at Taylor County Middle School, Reginald Wentworth, who reviewed the facts and counseled Silvers to refrain from touching his students. On or about September 15, 1995, four additional students complained that Silvers occasionally touched them which made them feel uncomfortable. As a result of these complaints, an investigation was undertaken of Silvers’ conduct and the statements of his students were taken. Their statements were reviewed at the Board level, and Paul Dyal, Principal of Taylor County Middle School was directed to counsel Silvers and advise him to alter his teaching style and not to touch students. Dyal advised Silver in writing to be careful of his comments to students and keep them professional.1 Silvers received an informal verbal and an informal written reprimand which was maintained in his personnel file. Thereafter, a mother of one of the girls who had originally complained about Silvers began to complain to the administration at the school and district about Silvers’ conduct with regard to the original incident. As a result of pressure put on the district by this parent, the matter was reinvestigated and the formal statements of the students originally involved were taken again. In addition, other students complained of Silvers touching them. Many of these students were called to testify at hearing, and their statements were introduced into evidence. None of these students described touching which was sexually explicit or overtly inappropriate because of the parts of the body which were touched. The touching described was “inappropriate” given the age of the young female students, and Silvers was properly directed to refrain from touching the students in this manner; however, the touching was not of a nature to establish “immoral” behavior. With the exception of two children, Maria V. and Michelle W., none of the children could fix the date of that Silvers touched them. It was not established that Silvers touched any of the other students after he was directed not to touch them. The incident involving Maria was typical of the reports of touchings reported by the students other than Amber M. and April E. The Respondent touched Maria on the shoulder while at her desk on December 1, 1996, answering a question she had. She reported that she did not feel uncomfortable because of Silvers’ touching her and would not have considered it except of the controversy over Silvers then being reported in the paper. Because of the diary entry she made, she could place the date of the incident. The other incident involved the Respondent touching Michelle on the leg while he plugged a pencil sharpener during class. Michelle was seated on a stool, with her feet on the upper rungs of the stool, and her knees and legs roughly parallel with her hips. The electrical outlet was between her knees on the upper part of the lab bench at which she was sitting. The Respondent, who was standing beside her, unplugged the sharpener into the outlet and accidentally touch her leg. Michelle thought nothing about it, was not concerned about it, and did not complain about it. This well documented occurrence was accidental and was not contrary to the directions which Silvers had received. The testimony of the two students who originally complained about Silver is discounted. In part, this is because their allegations continued to change during the investigation; however, the testimony of April at hearing was not credible. The testimony of Amber was not supportive of April regarding Silvers’ comments. Amber’s descriptions of Silvers’ conduct in the classroom was more detailed and differed from the testimony of the other students regarding Silvers’ behavior. Her descriptions of classroom touchings were of rubbing and lifting bra straps which would have been wholly inappropriate; however, she and April were the only students who offered such statements and testimony and it came late in the investigative process, casting doubts upon its credibility given the atmosphere which prevailed after the letter to the editor from April’s mother. In sum, the testimony of Ellison and Mauldin was sufficient to base the informal actions of the Board; however, their later testimony lacks the credibility to sustain the Board’s suspension and termination of Silver. The letter-writing campaign by April’s mother resulted in an atmosphere in which the young women in Silvers’ classes were overly suspicious of his every move. In addition, the administration re-investigated the matter and obtained the statements of additional girls that Silver had touched them. In response to leading questions, their statements indicated these were recent touchings; however, under oath and on cross examination they were unable to fix accurately the dates of the incidents of touching. On February 7, 1996, the Respondent was advised he would be suspended with pay pending an administrative hearing before the Board scheduled for February 13, 1996. The letter of suspension which is considered the original charging document, advised that he was charged with gross insubordination and immorality as the result of touching students in a inappropriate manner and continuing to do so after being directed not to touch students. Subsequent to Silvers’ requesting a hearing before the Division of Administrative Hearings, the Petitioner suspended the Respondent without pay on February 22, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board enter an order dismissing the charges against the Respondent, and reinstate the Respondent to his former position with back pay DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
The Issue The issue to be determined is whether Respondent, Erich Hamacher, violated section 1012.795(1)(j), Florida Statutes (2010), and Florida Administrative Code Rule 6B-1.006(3)(a) or (5)(a), and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator’s Certificate number 749876, covering the areas of Emotionally Handicapped and Specific Learning Disabilities, which is valid through June 30, 2012. He has been teaching in Florida since approximately 1995. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an Intellectual Disabilities Teacher at Richardson Middle School in the Columbia County School District. At that time, Respondent was teaching in a classroom that was identified as a classroom for students who were profoundly mentally handicapped. There were approximately eight students in his classroom, with four student-care attendants. None of the students in the classroom were verbal, and at least one did not walk. The allegations in the Administrative Complaint stem from an incident taking place on February 3, 2011, with respect to one of Respondent’s students, A.M. At the time of the incident, A.M. was 19 years old. For reasons that were not explained in the record, A.M. lost his vision, speech, and hearing at the age of six. He is non-verbal, but generally regarded as a happy child. However, he does suffer from mood swings that can make him difficult to control because of his inability to communicate. When he has these mood swings, according to his mother “he doesn’t want to be messed with” and “would push you away.” A.M. is very strong, has a high tolerance for pain, walks with a limp, and is stronger on his left side than his right. A.M. has attended Richardson Middle School for approximately five years. For the 2010-2011 school year, he was in Mr. Hamacher’s classroom. Typically, A.M.’s mother would walk him to the school bus, and he would use a tapping cane. She would assist the bus driver, Serena Flowers, in putting him on the bus, and he would sit directly behind Ms. Flowers on the way to school. Once they arrived, Nakila Scippio, his personal care attendant, and Ms. Flowers would help A.M. get off the bus and Ms. Scippio would walk with him to his classroom. Ms. Scippio was assigned exclusively to A.M., as he required one-on-one supervision. This was her first employment as a student-care assistant, and she did not finish out the school year in that position. Student-care assistants needed to obtain permission from the assigned instructor to call parents or other school officials, such as the school nurse. In this case, Ms. Scippio would have been required to seek permission to make any such calls from Mr. Hamacher. The evening of February 2, 2013, A.M. was agitated and restless, and according to his mother, “did not want anybody to mess with him.” On February 3, 2011, A.M. walked to the bus as usual, and walked to his classroom with Ms. Scippio. However, from the beginning of the school day it was apparent that A.M. was not having a good day. He was climbing all over the classroom, throwing tantrums, scooting and sliding across the floor, and trying to take his clothes off. He refused to eat breakfast. Because of his vision loss, someone had to walk with him around the classroom, and his behavior was not acceptable. Although A.M. did not usually cry at school, he was crying that morning. At some point in the morning, Respondent placed his hands on A.M.’s shoulders to place him on a mat on the floor of the classroom. Although his actions were firm, the more persuasive evidence is that he did not act in a way that would injure the child. A.M.’s immediate response was to jump up, and then went to the therapy table/mat where he lay down. He remained on the mat for the rest of the day, sometimes moaning and crying. While it is unclear what caused A.M.’s behavior that day, it is clear that the behavior was unusual for him at school. No one seemed to know why he was crying: while Ms. Scippio testified that she thought he was in physical pain, Mr. Hamacher thought the pain was emotional, and Mr. Crawford, his mobility therapist, thought he appeared to have a stomachache. However, no one testified that A.M. was holding his leg or knee during the day. While it was apparent that A.M.’s behavior was not normal for him, Respondent did not call the principal and did not call the nurse. He explained at hearing that the principal was not on campus that day, and that the nurse left early. Lakasia Portee-Jones, the school nurse, confirmed that she left the campus for the day at 12:45, but did not receive a call before she left. At approximately 10:00 a.m., Respondent called P.M., A.M.’s mother, to discuss an upcoming I.E.P. meeting, but mentioned no injury to her. Respondent did report to P.M. that A.M. had been crying during the morning. She reported that he had had a bad night the night before, and said if it continued, she would come and get him. Respondent assured her he would be fine. However, A.M. continued to cry or moan for the rest of the school day. Although it is unclear what was causing A.M.’s behavior at that point, some effort should have been made to determine why this non-verbal child was in such distress, regardless of whether the pain was physical or emotional. While calling the principal was not an option, and the school nurse was only available for part of the day, Respondent had no plausible explanation for not contacting the nurse earlier in the day, or for not contacting an assistant principal or other member of the administrative staff for assistance. A.M. usually wore pull-ups and needed assistance with toileting. On the day in question, he wet himself not once but twice, soaking though his clothes. This was also unusual. The student-care attendant normally deals with changing a student, but Mr. Hamacher was helping her because A.M. was being combative. The second time he was changed was immediately before the time to board the bus to go home. At that time, Mr. Hamacher noticed A.M.’s knee “go out” and then it appeared to him that it slipped back in. He was not overly concerned at the time because A.M.’s mother had reported (and she confirmed in her testimony at hearing) that his knee has slipped out on occasion in the past, and that she did not know how it happened. Mr. Hamacher determined that the best thing for A.M. was for him to go home. He did not call A.M.’s mother again. He helped Ms. Scippio place A.M. in a wheelchair, because he would not stand on his leg, so that he could be transported to the school bus to go home. Ms. Scippio escorted him to the bus in the wheelchair. Serena Flowers has transported A.M. for several years. When she saw Ms. Scippio wheeling him to the bus, she asked what was wrong. Ms. Scippio told her that she did not know, but something was wrong with his leg. Ms. Flowers could see that something was out of place, so she picked up A.M. and carried him up the stairs of the bus and placed him in his seat. Ms. Flowers then called A.M.’s mother and told her something was wrong with his leg, and asked P.M. to meet her at the school board building. When P.M. met Ms. Flowers, P.M. could tell immediately that A.M.’s knee was out of place. The two adults transferred A.M. from the bus to P.M.’s car, and she took him to the emergency room at Lake City Medical Center. In the emergency room, medical staff popped A.M.’s knee back into place and he was given a knee brace to wear in order to stabilize it. No prescription was given, and A.M. was walking around on his leg by the evening. He stayed home for a few days, and then returned to school. A.M. wore the brace for a couple of weeks and then would not wear it any longer. The children in Mr. Hamacher’s class had Daily Activity Reports (DAR) that went home each day to notify the parents of the type of activities conducted, behaviors noted, and any needed supplies to send from home. It is unclear what time of day the notes were usually completed. Ms. Scippio would prepare the DAR for Mr. Hamacher’s review, and then he would sign them. For February 3, 2013, Ms. Scippio prepared a note that A.M. had urinated twice in his clothes, and that extra clothes needed to be sent in. She circled the preprinted items as follows: problem behavior; kicking staff; and pulling on staff. She also wrote under comments, “[A.M.] cried this a.m. and climbed on top of furniture seemed to be in pain.” Mr. Hamacher told her to re-write the note, stating only the facts. The note as re-written included the same information as the first, except the written comments about A.M. climbing on the furniture and seeming to be in pain were omitted, and the behavior “had tantrums” was also circled. The note signed by Mr. Hamacher still indicated that A.M. cried in the a.m. Mr. Hamacher explained that he believed the crying stemmed from emotional, as opposed to physical, pain and that a factual statement was more appropriate.1/ The note that went home was not falsified. As Ms. Scippio stated at hearing, she was told to include “just the facts” as opposed to opinion. While the note was not falsified, Respondent should have called A.M.’s mother once he knew that there was any type of injury to A.M. The following day, P.M. called the school and spoke to the principal. She was upset that no one had called her about A.M.’s injury. As she stated at hearing, “I’m not here for his job. All I’m wanting to know is why nobody called me. Nobody called and let me know that he had hurt his leg. They took him to the bathroom. Somebody should have noticed that his leg was out of socket. That’s all I was mad about. Nobody notified me. I’m not after anybody’s job. I just want an answer why nobody called me.” School officials met with Mr. Hamacher and with P.M. to determine what happened. Mr. Hamacher was notified that Principal Whitfield was recommending that he be suspended for a period of three days without pay. The four bases listed for the discipline were that he did not fill out an accident report; did not send the child to the nurse; did not communicate to A.M.’s parent that an injury may have occurred; and did not report injuries to an administrator. On or about February 10, 2011, the Columbia County School Board suspended Respondent without pay for three days as a result of his conduct on February 3, 2011, regarding student A.M. After his suspension, Respondent returned to the same classroom and A.M. remained in his classroom for the remainder of the school year. Mr. Hamacher’s evaluation for the 2010-2011 school year was completed March 23, 2011, some five to six weeks after the three-day suspension. He received a satisfactory evaluation, with very effective marks for planning and preparation, technology, and collaboration. The comments section of the evaluation stated: “Mr. Hamacher is well organized compassionate and able to work collaboratively with his team of care attendants while accepting responsibility for everything in this challenging area of student education.” His prior evaluations were also satisfactory or very effective, and contain positive comments regarding his performance. The evidence presented at hearing indicates that Respondent is a good teacher and is dedicated to the well-being of his students. He strives to ensure that his students reach their full potential and to be able to contribute to society despite their limitations. With the exception of the suspension imposed for this incident, there is no evidence that Respondent has ever been disciplined by the School District. Likewise, there is no evidence that Respondent’s certification has been disciplined by the Education Practices Commission. When he received his original certification, it was issued subject to a two-year probationary period as a result of prior conduct disclosed on his application. However, that conduct was considered in the initial licensure process and bears no relationship to the conduct at issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of Counts 1 and 2 of the Administrative Complaint and not guilty of Count 3. It is further recommended that Respondent be placed on probation for a period of two years, a condition of which shall include an additional 20 hours of continuing education, in areas to be determined by the Commission. DONE AND ENTERED this 9th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2013.
The Issue The issue is whether Petitioner has just cause to terminate Respondent, a noninstructional employee.
Findings Of Fact Petitioner hired Respondent in December 2002 to provide clerical services at Sunset Elementary School, where she worked until she was suspended, as described below. Sunset Elementary School is a magnet school that receives more applications than it can accept. At all material times, Respondent was the sole magnet clerk, who handled the vast amount of paperwork through the recruitment/application process that runs annually from October 1 through January. These duties included ensuring that the paperwork was accurate and scheduling interviews with candidates. Under her 12-month contract, Respondent was required to perform her duties from 8:30 a.m. to 4:30 p.m. daily. A new principal arrived at Sunset Elementary School for the 2003-04 school year. Immediately, Respondent began having problems with attendance, arriving late or not at all. At first, the principal spoke with Respondent informally, reminding her of her duties and the importance that she arrive at work on time every day. When informal discussions failed to result in any improvement, the principal sent Respondent a memorandum dated September 24, 2003, identifying seven absences for various reasons and six tardies. The memorandum requires Respondent to provide advance notice of absences and a physician's note for absences due to illness. This intervention was ineffective. By memorandum dated April 16, 2004, the principal detailed 21 additional absences or tardies during the same school year since the prior memorandum. These absences included seven consecutive school days in April. As the principal testified, the main purpose of this memorandum was to learn if Respondent had quit. By memorandum dated July 21, 2004, the principal reprimanded Respondent for her excessive absences and tardies during the preceding school year. Respondent's attendance was not satisfactory the following school year. By memorandum dated April 14, 2005, the principal again reprimanded Respondent for repeated absences and tardies and failure to comply with the directives from the preceding school year. Since the memorandum of July 21, 2004, Respondent had been absent, tardy, or left early 43 times. In the six weeks since the April 14, 2005, reprimand, Respondent missed all or part of six days of work. By memorandum dated May 25, 2005, the principal reprimanded Respondent for gross insubordination due to the six absences or tardies since the April 14 memorandum. Again, Respondent failed to respond to these interventions. During the 2005-06 school year, she was absent 45 times, as advised by memorandum to her from the principal dated June 12, 2006. By memorandum dated June 13, 2006, from the principal, Respondent was again reprimanded for her absences and tardies during the preceding school year. On October 13 and 19, 2006, Respondent failed to appear at work without prior (or subsequent) authorization. Petitioner conducted a conference for the record on November 7, 2006, at which its representatives discussed with Respondent her noncompliance with attendance rules. By memorandum dated November 21, 2006, from the principal to an assistant superintendent, the principal recommended dismissal of Respondent for gross insubordination and unsatisfactory attendance. By letter dated December 20, 2006, the assistant superintendent informed Respondent of her intention to ask Petitioner, at its January 17, 2007, meeting, to suspend Respondent without pay and initiate dismissal proceedings against her, unless Respondent requested a hearing within 20 days. Respondent timely requested a hearing. Article XXI, Section 3.D of the applicable collective bargaining agreement applies to "educational support employees" and provides: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire Janeen R. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Amy Marie Utrera 1201 Southwest 124th Court, Unit C Miami, Florida 33184
The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
