The Issue Whether Ms. Rokos' teaching certificate should be revoked or otherwise disciplined for gross immorality or moral turpitude in violation of Section 231.28(1)(c), and (f), Florida Statutes (1987), of Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, and Section 231.28(1)(h), Florida Statutes (1987).
Findings Of Fact Nicole D. Rokos holds Florida Teaching Certificate 542378, in the areas of mental retardation and specific learning disabilities. She is 35 years old and has taught at exceptional student education programs for 11 1/2 years. At the time of the incident involved, Ms. Rokos was employed as a special education teacher at Ely High School by the School Board of Broward County. Ms. Rokos teaches students who are learning disabled, mentally handicapped, and emotionally disturbed. Learning-disabled students are typically of average or above average intelligence who do not learn in the same way as regular students, but require different teaching strategies and methods to succeed academically. Ms. Rokos often had contact with her students in addition to her regular class periods. She attempted to involve students in activities relating to areas in which they were insecure in order to improve their self-concept. As a teacher for 8 1/2 years at Ely High school, Ms. Rokos received very good evaluations of her performance which noted not only her teaching skills, but also her involvement in extra-curricular activities, see, e.g., the evaluations of December, 1982 and February, 1985. None of her evaluations contained any entries in the portion of the form used to describe areas needing improvement. Other teachers at Ely High School regard Ms. Rokos as an excellent teacher. Former students also regard her as an inspiring teacher. One of Ms. Rokos' students at Ely High School in 1988-89 school year was Earl Thomas Williams, Jr. He has learning disabilities in the areas of oral and written communication and mathematics and is of average intelligence. During December of 1988-89 school year he was 18 years of age, 6'3" tall and weighed 226 pounds. During evenings Earl Williams often would call Ms. Rokos for help with homework. Earl's father has high regard for Ms. Rokos, and believes that due to her work with Earl, Earl has stayed in school, and now attends community college. During the 1988-89 school year Marla Henderson, a cousin of Nicole Rokos by marriage, also attended Ely High School. She met Earl Williams through Ms. Rokos. Marla and Earl went out together from mid-September to mid-November, 1988. On December 3, 1988, at Earl's suggestion Ms. Rokos and another teacher accompanied Marla Henderson and Earl Williams to an Ely High School football game. That night Ms. Rokos dressed in socks and sneakers, white jogging shorts, white sweatpants which said "Tigers" down the side in orange letters, white tank top under a gray T-shirt with "Ely" written in orange letters across the front and a green "Ely" windbreaker. Earl Williams wore a yellow shirt, white jeans, and under them black cotton shorts that reach to the mid- thigh, which are similar to spandex bicycle shorts, but which fit somewhat more loosely. Those shorts had large white lettering horizontally at the elastic waist, as well as large white lettering vertically on the outside thigh area. After the game, at approximately 10:00 p.m., all four returned to the other teacher's home, where Ms. Rokos picked up her car, and left with Marla and Earl. Ms. Rokos' car has tinted windows. Marla was in the front seat and Earl in the back. Earl was sulking due to the recent break-up of his relationship with Marla. Ms. Rokos first dropped off Marla at approximately 11:00 p.m. Before returning to Earl's home, Earl ostensibly asked Ms. Rokos if they could go to a park and talk. Ms. Rokos drove to Kester Park in Pompano Beach, a park of approximately one square block. She pulled into the park between tall trees which line the perimeter of the park. The tree canopy obscured the light from near-by street lights in the car. A home invasion robbery had been reported to the Pompano Beach Police Department at a home near the park at about 11:00 p.m. At approximately 11:30 p.m. Officer William Weir of the Pompano Beach Police Department was in the area. He found Ms. Rokos' vehicle pulled between the trees at the park, which was then closed. Because the park was closed, and the car was partially concealed from view by the trees, he was alarmed, because the car could have been involved in the nearby robbery. Officer Weir was in a marked police car. Officer Weir drew near Ms. Rokos' car, and parked behind it so that the car could not back on to the street, nor go forward because of the trees and foliage in the park. He activated the spot lights on the top of his car, and could clearly identify a female figure inside the car. The driver side window was partially opened. As Officer Weir approached the car on foot, the driver attempted to back out, and although the car lurched back, its path was obstructed by the police car. As Office Weir reached the side of the car, a back-up officer arrived on the scene and also approached the vehicle. Officer Weir shined his police flashlight into the automobile where he could see Ms. Rokos and, for the first time, a man who was sitting in the passenger seat, who had not been visible before because the passenger seat was fully reclined. Officer Weir saw that Ms. Rokos was dressed only in a shirt, and was nude from the waist down. He could clearly see her thighs, pubic hair and genital area. Earl Williams was completely nude, and attempting to hide his genitals with the cloth of his yellow shirt. Officer Weir saw the student's penis protruding from beneath the material and his pubic hair. All facts taken together have led the Hearing Officer to infer that sexual contact between Ms. Rokos and the student had occurred or was imminent but interrupted by Officer Weir. In order to investigate further, Officer Weir directed both Ms. Rokos and Earl Williams to dress and exit the vehicle. After seeing Ms. Rokos' clothing with the Ely High School logo and noting the youth of her passenger, he asked whether she was a teacher. Initially, she denied it but later admitted to Officer Weir that Earl Williams was one of her students. Earl Williams readily admitted he was a student at Ely and Ms. Rokos was his teacher. She asked the officer not to report the incident, and was obviously distraught. Officer Weir then determined that Earl Williams was not a minor, and then warned Respondent about her conduct and allowed both of them to leave. Although no arrests were made, Officer Weir did file a uniform offense report about his contact with Ms. Rokos and Earl Williams at the end of his shift. Ms. Rokos testified that she was not nude, but had removed her socks, shoes, and sweatpants to be more comfortable, but was still wearing her shorts, and that Earl Williams had removed his shirt, which was in his lap, and had taken off his jeans, but he was not nude because he was wearing the black shorts. The testimony of Officer Weir is more credible. He saw the student completely nude and Ms. Rokos nude from the waist down. His testimony was emphatic and specific. Moreover, it was quite cool during the early morning hours of the night of December 3-4, 1988. There is no reasonable explanation for a teacher to have been parked in a car in a closed city park late at night with a student who had, according to her testimony, removed both his shirt and jeans, and for her to have removed her running shoes, socks, and sweatpants. Moreover, due to the bold white lettering horizontally across the waistband of the student's black shorts, and the bold white lettering vertically down the outside thigh of the shorts, the police officer would not have mistaken the shorts for flesh, even though the student is black. After receiving the incident report completed by Officer Weir, Lieutenant DeFuria of the Pompano Beach Police Department forwarded the report to the Director of Special Investigations at the School Board of Broward County, Howard J. Stearns. After reviewing the report on December 5, 1988, the first school day following the incident, Mr. Stearns had the administrators of Ely High School notify Ms. Rokos to meet with him at his office concerning the incident. At the interview, Ms. Rokos told Stearns that she was wearing underpants and the student was not nude. Having heard her denial, Mr. Stearns suggested that if she were being truthful, then Officer Weir must be lying, and the Pompano Beach Police Department should be requested to investigate the false report made by Officer Weir. Mr. Stearns began to dial the number of the Police Department, when Ms. Rokos relented and said that she did not think that any investigation of Officer Weir should be made. Ms. Rokos then broke into tears and asked to see her union representative. After meeting with that representative, Ms. Rokos resigned her position with the School Board of Broward County. One of the reasons she did so was to avoid the publicity incident to an investigation into the incident by the School Board. As the result of being discovered in such a compromising situation with one of her own students, Ms. Rokos has lost her effectiveness as a teacher in Broward County and would not be reemployed by the School Board of Broward County as an educator.
Recommendation It is recommended that the teaching certificate of Nicole D. Rokos be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3947 Rulings on findings proposed by the Commissioner of Education: 1. Adopted in finding of fact 1. 2. Covered in finding of fact 1. 3. Adopted in finding of fact 6. 4. Adopted in finding of fact 6. 5. Adopted in finding of fact 11. 6. Adopted in finding of fact 12. 7. Adopted in finding of fact 12. 8. Adopted in finding of fact 12. 9. Adopted in finding of fact 13. 10. Incorporated in finding of fact 13. Considered in finding of fact 15. Considered in finding of fact 16. Considered in findings of fact 6 and 12. The remaining portions of the proposal are rejected as argument. It is true, however, that it would have been impossible for Earl Williams to have disrobed without Ms. Rokos being aware of it. Discussed in finding of fact 15. Rejected as unnecessary. Discussed in finding of fact 16. Rejected as unnecessary. Rejected as unnecessary. Discussed in finding of fact 17. Rulings on findings proposed by Ms. Rokos: Adopted in finding of fact 1. Adopted in finding of fact 2. Generally adopted in finding of fact 3. To the extent appropriate, the evaluations are discussed in finding of fact 4. To the extent appropriate, discussed in finding of fact 5. Rejected as subordinate to the findings of fact made in findings 3-5. Rejected as unnecessary. To the extent appropriate, discussed in finding of fact 5. Discussed in finding of fact 6. Discussed in finding of fact 7. To the extent appropriate, discussed in finding of fact 8. Rejected as unnecessary. Adopted as modified in finding of fact 8. Discussed in finding of fact 9. Discussed in finding of fact 10. Rejected, see the findings made in finding of fact 10. Rejected; even if Ms. Rokos and Earl Williams discussed any matters relating to school, such discussions were not the focus of their activities in the car. See, the final sentence of finding of fact 12. Discussed in finding of fact 12. Discussed in finding of fact 12. How far the window was open is not significant; the officer had an adequate view of the scene. Adopted in finding of fact 12. Rejected for the reasons stated in finding of fact 15. Adopted in finding of fact 13. Rejected as subordinate to finding of fact 13. Rejected as unnecessary. 25 and 26. Discussed in finding of fact 16. To the extent appropriate, discussed in finding of fact 16. It is not clear whether Mr. Stearns said anything which would have led Ms. Rokos to believe than the school board would not report the matter to the Department of Education. The school board had no choice, and the matter was reported and investigated by the Department, which led to this proceeding. COPIES FURNISHED: Carolyn LeBoeuf, Esquire Brooks & LeBoeuf, P.A. 836 East Park Avenue Tallahassee, Florida 32301 Thomas W. Young, III, Esquire FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Department of Education Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether there is just cause to suspend Respondent, George Young (Respondent), as alleged in the letter of the superintendent of schools dated June 9, 2008.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff. At all times material to the allegations of this case, Respondent, George Young, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach at Sebastian River High School and served as head baseball coach for the varsity team. For purposes of this case, all acts or omissions complained of were in connection with Respondent’s responsibilities as a baseball coach. By way of background, the allegations of this case evolved from an underlying incident that must be disclosed in order to put the proper perspective on Respondent’s role and responsibility in connection with the allegations. During March of 2008, Respondent scheduled his team to participate in a baseball tournament held in Broward County, Florida. The tournament location and schedule made it convenient for the team to remain near the site for one night of the tournament. This was not the first over-night venture for Respondent and the teams he coached. Prior to tournaments it was Respondent’s policy to instruct the team that they were representatives of the school. Respondent encouraged the students to refrain from horseplay, roughhousing, or misbehavior that could discredit them or the school. In short, the team members were to conduct themselves as gentlemen. Nevertheless, some of the students did engage in poor conduct. More specifically, several of the players began to wrestle in one of the hotel rooms. Some unspecified number of the players turned on their teammate, H.C. Without Respondent’s knowledge or consent, the players wrestled H.C. (the victim) to a bed, pulled down his pants, and placed a plastic soda bottle at or near his rectum. It is unknown whether the bottle actually penetrated the victim, but the fact that an assault was perpetrated by the student players is certain. After the assault, the victim escaped the room and fled to another hotel room. Several team players observed the victim to be quite upset. Moreover, at least one player believed that the student was so upset he was crying. Word spread among some of the players that something bad had happened to the victim. The details of the assault were not general knowledge. At least two adults who accompanied the team on the trip were also made aware that something untoward had occurred to the victim. At least one of the parents told Respondent that night that something had occurred. No specifics of the incident were disclosed to Respondent. He knew, however, that wrestling had occurred and that someone was upset. Respondent made no effort to personally discover what had happened to the victim that night. Presumably, he chalked it up as adolescent roughhousing. The next morning Respondent called a team meeting before the team left the hotel. It was his custom to speak to the team before checkout but on this morning he had the additional task of attempting to find out what had occurred the night before. Not surprisingly, no one disclosed the full details of the assault. From the hotel the team went on to a meal and played in the tournament. Respondent did not pursue further inquiry into the assault. Respondent did not question anyone individually regarding the events. Approximately one week later the victim's parents heard about the assault. A parent telephoned them to share information that something had occurred on the tournament trip. They were stunned and surprised to learn of the incident. They questioned their sons (both of whom were on the tournament trip) and decided something needed to be done to punish the students who committed the assault. To that end, they went to Respondent's home and asked him about the incident. Respondent was surprised to learn of the details of the assault and represented that something would be done to appropriately discipline the perpetrators of the deed. The weight of the credible evidence supports the finding that on the night of the parents' visit to Respondent's home, Respondent knew that the victim had been wrestled to the bed, had had his pants pulled down exposing his buttocks, and that a bottle may have been involved at or near the student's rectum. The bottle portion of the assault was stated as a possibility as the victim's parents at that time had not confirmed whether or not the bottle was used or merely threatened. Nevertheless, when Respondent reported the incident the next day to the athletic director, the possibility of a bottle being involved in the assault was omitted. Since Respondent did not disclose the full details of the assault, including the fact that a bottle may have been involved, to the athletic director, the punishment initially to be administered to the student perpetrators did not satisfy the victim's parents when they learned what would be imposed. Instead, they demanded that more harsh consequences befall the students who were involved in the assault. Their report of the incident conflicted with Respondent's story to the athletic director. It soon became clear that while the parents may have been willing to spare their son the embarrassment of the bottle portion of the story when they believed the penalty imposed against his attackers would be great, they were not going to let the perpetrators skate by on the penalty initially chosen. Thus Respondent's willingness to leave out the bottle portion of the assault became critical to the matter. In fact, the omission of the bottle portion of the incident became the key allegation against Respondent. The superintendent's letter setting forth the allegation against Respondent stated, in part: On April 8, 2008, you told Athletic Director, Michael Stutzke, that an incident occurred during an out of town baseball tournament that involved wrestling with someone's pants being pulled down. When you made that statement you knew that was not the complete story, because the night before, you met with a student's parents who told you their son's (the victim) pants were taken down and a bottle put near his rectum during the course of this incident. This is the same incident you described to Mr. Stutzke as mere wrestling and someone's pants pulled down. The credible weight of the evidence supports the finding that Respondent knew he had not given Mr. Stutzke the complete story of the incident. Although Respondent at that time may not have known for a fact that a bottle was used in the commission of the assault, he knew that the rumor of the bottle's use was in question. An investigation of the matter would have proved or disproved the bottle portion of the story. Respondent did not, however, reveal that portion of the allegations to school authorities. Although Respondent may have entertained the misguided notion that he was protecting the victim from embarrassment by not disclosing the full details of the assault, his failure to make school officials aware of the incident and the potential allegation of the bottle demonstrates a failure to fully and honestly conduct himself professionally. Respondent has enjoyed a long, successful, and popular run as a baseball coach in the district. At the end of the day, however, responsibility for the safety and well-being of his team rested with him. That job is unrelated to the success of the team or their desire to play in tournaments. Moreover, school authorities must be able to rely on a coach's veracity to completely and accurately report any incident that may occur during a school-sanctioned event. The stipulated facts of the parties provided: On March 31, 2008, George Young was the head coach for the Sebastian River High School Varsity Baseball team. On March 31, 2008, the Sebastian River High School Varsity Baseball team attended a baseball game in Plantation, Florida. Kevin Browning, Director of Human Resources, investigated allegations of an incident that occurred on March 31, 2008 involving the baseball team. Browning released his Report and Recommendation on June 26, 2008. Young was given a three day suspension, which is the subject of the appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the suspension of Respondent and denying his claim for salary reimbursement. DONE AND ENTERED this 29th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2009. COPIES FURNISHED: Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3150
The Issue At issue is whether the respondent committed the violations alleged in the Notice of Specific Charges filed by the Dade County School Board and in the Administrative Complaint filed by the Commissioner of Education, and, if so, the appropriate penalties.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The respondent currently holds Florida Teaching Certificate 409549, issued by the Florida Department of Education, Bureau of Teacher Certification, covering the areas of physical education and middle grades general sciences. This certificate is valid through June 30, 1996. The respondent has been employed by the School Board since 1974 and has been assigned to American High School since 1976. Until April 23, 1993, when he was placed on alternate assignment at the Dade County school system's Region I office, he taught at American High School and coached the girls' basketball team. 2/ Teacher/student sexual relationship. While he was a teacher at American High School, the respondent engaged in a sexual relationship with A. C., a student, which began when the student was under 16 years of age, and he fathered a child born to the student on January 13, 1987. A. C. attended the 9th through 11th grades at American High School, from 1983 through 1986. She was at the school one night when the respondent approached her and asked if she would consider having a sexual relationship with him. She agreed, and they entered into a relationship which lasted approximately one and one-half years. A. C. and the respondent would meet at school during school hours, toward the end of the school day, and he would drive her to his apartment, where they would engage in sexual intercourse. In June 1986, A. C. learned she was pregnant. She believed that her pregnancy was the result of her relationship with the respondent, and she told the respondent that he was the father of her child. She also told her mother about the relationship and about her pregnancy, and her uncle notified the school authorities. An investigation was conducted by school authorities, but no action was taken against the respondent. A. C. gave birth to a daughter on January 13, 1987. A paternity blood test, including a Human Leukocyte Antigen test, was performed in the context of the paternity action brought by A. C. against the respondent in November 1987. The results of this blood test demonstrated a 99.19 percent probability that the respondent is the father of A. C.'s child. 3/ On May 1, 1989, a Final Judgment of Paternity was entered determining that the respondent was the father of the child born to A. C. on January 13, 1987. The judgment directed the Bureau of Vital Statistics to amend the child's birth certificate to reflect that the respondent was the child's father. The court also ordered the respondent to pay child support and found that, as of October, 1989, the respondent owed $8,500 in retroactive child support. On March 16, 1994, an article was published in the Miami Herald newspaper regarding the adjudication of paternity and the action taken by the School Board on March, 9, 1994, suspending the respondent. Sexual advances and improper touching of a student. E. T. was a student at American High School, and a member of the American High School girls' basketball team during her sophomore and junior years, from September 1991 to June 1993. She graduated from Dade Christian in June 1994 and has attended the University of Florida since that time. Between 2:00 p.m. and 3:00 p.m. on a Sunday afternoon in the fall or early winter of the 1992-1993 school year, the respondent telephoned E. T.'s home. 4/ Her father answered, and, because E. T. was not yet home from church, he took a message from the respondent reminding her about her appointment that afternoon for a back treatment. Mr. T. gave his daughter the message as soon as she arrived home, and she immediately changed clothes and left the house. E. T. drove to the school and parked in the back. After the respondent arrived, they went into the gym, and the respondent went into the boys' locker room to call security to let them know he was in the building. They walked upstairs to the training room, where the whirlpool was located. The respondent told E. T. she needed to spend thirty minutes in the whirlpool, and she got into the whirlpool wearing boxer shorts and her basketball shirt. When E. T. got out of the whirlpool, the respondent offered to help her dry off; she told him that would not be necessary. The respondent then told E. T. she needed a back massage. Although she initially refused, she eventually acquiesced and lay on the table. The respondent persuaded her to remove her shorts so he could massage her lower back. The respondent massaged E. T.'s thighs and buttocks in addition to her lower back. When he told her to turn over, she hesitated but then did as he said. He proceeded to massage her legs and thighs, then moved to her inner thighs. When he touched her genitalia, she jumped up, grabbed her things, and ran out of the training room into the girls' locker room. The lights were not on in the locker room, and she ran into lockers and chairs until she finally found her way outside. During this episode, she felt helpless and afraid, embarrassed and violated. She drove home and immediately took a shower. 5/ E. T. did not tell anyone about this incident for some time. When her parents learned of the incident some months later, in March or early April 1993, T. and her parents went to school and told one of the school administrators, Mike Dupree, about the incident. Mr. Dupree passed the information on to Robert Snyder, American High School's principal, who requested that the School Board police initiate an investigation. As a result of the complaint, the respondent was placed on alternate assignment at the Region I office. Financial irresponsibility. The coaches at American High School, including the respondent, were reminded at the beginning of each school year of the requirement that pre- approved purchase orders be obtained for all orders for athletic equipment for the school teams. Vendors doing business with American High School were advised of the purchase order requirement and were advised that American High School would not be liable for any purchases made without a purchase order number and that the individual coach would be responsible for payment. On or about December 8, 1989, respondent ordered twenty-four pairs of athletic shoes from Midway Sporting Goods at a cost of $1,257. The invoice bears the name of the 'American High School Girls Basketball Varsity and J.V.,' but it does not contain a purchase order number. The respondent knew at the time he placed the order that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. 6/ The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. 7/ The respondent received the shoes, and they were used by the American High School girls' basketball team. The respondent did not, however, pay for the purchase even though he knew he was required to do so under school policy. The bill for this order was not paid until November, 1992, when Mr. Snyder authorized payment from the internal account of the American High School girls' basketball team at the urging of the School Board's attorney and in response to a letter dated February 2, 1991, from Midway Sporting Goods' attorneys threatening to sue the school and the School Board unless the invoice was paid. Mr. Johnson has not repaid the school the $1,257. American High School also received copies of two other invoices, one from Miami Lakes Sports Shop for $839.40, dated December 4, 1991, and one from Matty's Sports for $392.83, dated November 28, 1992, both showing that sports equipment, primarily shoes, was 'Sold to' American High School, to be shipped to the respondent. Neither invoice contains an approved purchase order number. Respondent placed these orders knowing that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. He received the equipment he ordered, and it was used by the American High School girls' basketball team, but the respondent has not paid the amounts owed for the purchases. The vendors have asked American High School for assistance in collecting the monies owed. The respondent asked that American High School pay for the purchases, but Mr. Snyder refused. On May 4, 1992, American High School received a letter from a representative of Florida International University requesting assistance in collecting $450 from the respondent. The letter charged that the respondent wrote a personal check in this amount to pay the fee for students from American High School to participate in a basketball camp during the summer of 1991, that the check was returned for insufficient funds, and that attempts to collect the $450 had not been successful. On July 22, 1993, the respondent wrote a check for $495 payable to SOYSA (South Orlando Youth Sports Association), and, on July 23, 1993, he wrote another check payable to SOYSA for $100. The checks were written on the 'American Basketball Booster Club' account, and the address stated on the face of the checks is the same address as that of American High School. The respondent knew at the time he wrote the checks that there were not sufficient funds in the account to cover them. In September, 1993, Robert Snyder, American High School's principal, was asked by the Association for assistance in collecting the funds. In July, 1993, when the respondent and members of the American High School girls' basketball team were in Orlando, Florida, at a basketball tournament, the respondent telephoned a fellow teacher and asked if he would send $500 to help pay expenses. The respondent promised to pay the money back. The teacher, Kevin Van Duser, sent an American Express MoneyGram. The respondent received the money, either in Orlando or, on his return, in Miami. He has not repaid Mr. Van Duser. The import of the respondent's conduct. The respondent's behavior in engaging in a sexual relationship with a fifteen-year-old student and in making sexual advances to another student is, of itself, sufficiently outrageous to constitute gross immorality and misconduct in office and to impair irretrievably his effectiveness as an employee of the Dade County school system. The respondent breached the special relationship of trust existing between a teacher and a coach and his students; he fostered conditions likely to be harmful to the mental and physical health and safety of A.C. and E.T.; he caused E. T. extreme embarrassment and distress; and he exploited his position as teacher and a coach for his own personal advantage. The respondent's financial irresponsibility constitutes misconduct in office because it is in contravention of a teacher's obligation to the profession to be honest in all professional dealings. The repeated acts of financial irresponsibility committed by the respondent reveal a course of conduct so serious that it impairs the respondent's effectiveness in the school system and as an employee of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, in Case No. 94-1467, the School Board of Dade County enter a Final Order concluding that Frank Johnson is guilty of immorality and misconduct in office and terminating his employment with the School Board of Dade County, sustaining his suspension of March 9, 1994, and denying back pay for the period of suspension. RECOMMENDED that, in Case No. 94-3575, the Education Practices Commission enter a Final Order concluding that Frank Johnson is guilty of gross immorality, personal conduct which seriously reduces his effectiveness as an employee of the school board, and violation of rules of the State Board of Education which carry a penalty of revocation and revoking permanently his teaching certificate. DONE AND ENTERED this 9th day of August 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August 1995.
The Issue The complaint alleges that on or about September 7, 1998, Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the students under his supervision in that Glenn L. Marsh failed to provide the students water during the practice, causing the students to become dehydrated and causing one student (S.J.) to collapse and require hospitalization for severe dehydration. Essentially, the factual issue in this case is whether during a two and one-half hour football practice session on September 7, 1998, Glenn L. Marsh, head football coach of Atlantic High school, who did not give a team water breaks to all 40 players at any one time, but instead gave his three assistants coaches unilateral authority to give groups of players under their individual supervision water breaks as they deemed necessary, caused students to become dehydrated and caused one student to become dehydrated and hospitalized, and thereby violated Sections 231.28(1)(f) and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a)and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact Petitioner is a state agency charged with the regulation of the teaching profession pursuant to Chapter 231, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code. Respondent, Glenn L. Marsh, is a certified teacher in the State of Florida, having been issued Teaching Certificate No. 702169 on July 1, 1990. At all times material hereto, Glenn L. Marsh was employed by the Volusia County School Board and assigned to Atlantic High School as teacher/head football coach and continued these dual duties until resigning on or about September 24, 1998. At all times material hereto, Glenn Marsh, head coach, was responsible for establishing policy governing training and operations of varsity football at Atlantic High School. Under Coach Marsh's direct supervision were three assistant teachers/coaches, Ron Grayton, Jim Longerbeam, and Steve Lawson. Substantial and competent evidence establishes that each assistant coach understood his responsibility, when students were under his individual supervision and control, for the care and safety of students in his charge. The Assistant coach's responsibilities included but were not limited to, training and conditioning of players, evaluation of players' strength and weaknesses, and other coaching assignments during training and during the playing of varsity football games. At all times material hereto, Volusia county policy required every male or female student, prior to participation in sport activities, to undergo a physical examination at Halifax Medical Center. A list of students who were medically approved to participate in sports was provided to the high school's Athletic Director, who in turn gave this information to the high school head coach. Student S.J. underwent the required 1998 medical examination, was approved and permitted to participate in sport activities at Atlantic High School. At all times material hereto, S.J. was a student attending Atlantic High School and a member of the Atlantic High School varsity football team. The parties stipulated, with confirmation by S.J., and by his mother, Joy James, that S.J. is a carrier of the sickle cell trait.1 Upon the testimony of the parties, it is established that S.J.'s medical condition, sickle cell trait, was not made known to Duane R. Busse, Investigator, Volusia County Schools, Office of Professional Standards, nor to the Halifax Medical Center during S.J.'s physical examination, nor to Coach Glenn Marsh nor to any other member of the coaching staff at Atlantic High School. From or about 9:00 a.m. to 11:30-12:00 p.m., during the course of his employment, Glenn Marsh was primarily responsible for supervising the varsity football practice at Atlantic High School, Titusville, Florida. On the morning of Monday, September 7, 1998 (Labor Day), at approximately 9:00-9:15 a.m., S.J. and approximately 39 other members of Atlantic High School football team reported to Atlantic High School athletic fields for a routine football practice session for approximately two and one-half hours. Credible evidence shows that players, at their option, dressed in shorts, tee shirts, and helmets for the morning practice. Some players elected to wear girdles.2 Of the players wearing girdles, some inserted padding in the inner girdle pockets and other did not. This early morning practice was a no-contact session.3 The testimony of the witnesses establishes that the weather condition on the morning of September 7, 1998, was normal in Florida for that time of the year, hot and humid, no rain with temperatures in the high 80 to 90 degrees. Credible evidence shows that on September 7, 1998, the no-contact practice session consisted of specific physical activities wherein players were grouped according the their positions on the team. Those physical activities scheduled by Coach Marsh were of limited duration and consisted basically of the following: Starting time: 9:30 AM Stretching 10-15 min. (9:30-9:45) warm ups 45 min (9:45-10:30) special teams 25-30 min (10:30-11:00) defense air 25-30 min (11:00-11:30) offense air 10 min (11:30-11:40) Conditioning runs 10 min (11:40-11:50) knee down review 5 min (11:50-11:55) Locker dress out 5 min (11:55-12:00). Stretching consisted of wind-mills, jumping jacks and in-place running, followed by special teams4 (punt return, offense, defense, wide receivers and running backs, etc.) against air (phantom team) which begins with players doing a walk-through against an air opponent. All players who were not playing on the team engaged in practice were required to kneel on one knee and observe but could not sit down. Conditioning practice, which followed special team practice, consists of running laps up and down the football field with one coach positioned in one end zone, another coach at mid-field to time players, and Head Coach Marsh in the other end zone, directing runs. Credible evidence establishes that the head coach, Glenn Marsh, determines the numbers of laps team members are required to run. On the day in question, Coach Marsh recalled that players ran six 100-yard sprints and two 40-yard sprints and the September 7, 1998, practice session which followed an established routine and pattern of prior practice sessions. Prior to the date in question, team members had undergone some two-a-day practice sessions but at least one practice session had been held every week since the beginning of the 1998 football season without incident of any nature. On September 7, 1998, at or near the conclusion of players running conditioning laps, S.J. experienced a near sycopal episode. S.J. was assisted into the locker room by other students and was treated by coaches and teammates who undressed him, iced him down, and attempted to get him to drink liquids. S.J. was subsequently transported by EVAC to Halifax Hospital, Daytona Beach, Florida, for treatment. Medical evaluation of S.J. by Halifax Hospital staff reported a history consistent with heat exhaustion, dehydration, and a mild renal failure. Follow-up treatment by Dr. Norman D. Pryor, Division of Nephrology, from September 9, 1998 through July 30, 1999, at Nemours Children's Clinic, Orlando, Florida, revealed S.J. had sustained no permanent impairment of his renal function. On January 25, 1999, Dr. Pryor reported S.J.'s renal process resolved and released S.J. to resume sports activities with no anticipated residual over time. (Petitioner's Exhibit 1). On September 7, 1998, Coach Ronald Graydon, in charge of the offense and wide receivers which included S.J., testified that he distinctly recalled giving his group of skilled players a water break: "Okay guys, let's pride it out and go to the trough -- or let's pride it out and get some water, which means break out of a huddle and go get some water." He knows that the water trough was turned on and water was available to players. He does not, however, recall who went to the water trough nor does he recall who drank water at the water trough.5 S.J. testified to the contrary. He recalls that he was never offered water by any of the coaches on September 7, 1998. On cross-examination, S.J. admitted he does not remember how much water he drank on Saturday or on Sunday before the Monday morning football practice session. However, on redirect examination, S.J. remembered, "I had only one cup of water or two cups of water before I went to practice. I thought like they'll have water out there, you know. I wouldn't have liked, you know, chug down like a gallon before I went out there". S.J. testified that though he did not personally go to the water trough (although he remembered that the water trough was not turned on that day), the water trough was not hooked up that day and was not running and that the only source of water they (team) had out there (the practice fields) was a water fountain6 that barely put out any water. S.J. further testified that throughout the entire two and one-half hours of practice session he did not have a drop of water or a chance to get water. According to S.J., as he was down on all fours at about the 10-yard line preparing for conditioning sprints, he asked Coach Marsh, who was standing about 10 to 20 yards away, for water and was told "No." S.J. does not recall if Coach Marsh heard his request. S.J. did not repeat his request to Coach Marsh, other coaches, or fellow students. No witness was presented to corroborate S.J.'s recollection of his being on his knees asking for water. Michael Beauregard, a special team running back player who was in S.J.'s skills group and who, prior to Coach Marsh's becoming head coach, was the starting quarterback for the team, testified from a confused memory of events on September 7, 1998. Initially, Michael Beauregard recalled that practice began in the afternoon. When asked the same question a second time, Mr. Beauregard testified, "I have to say the morning, chances are." Mr. Beauregard testified that to his knowledge, it was Coach Marsh's policy during practice sessions that assistant coaches would gave their individual player groups water breaks. However, on September 7, 1998, as he recalls, assistant coach Jim Longerbeam never gave his group (running backs and wide receivers, including S.J.) a water break. The inconsistencies, contradictions and confusion in Michael Beauregard's testimony render it less than precise and explicit, not the result of distinct memory, confusing as to facts in issue, and therefore, it does not produce a firm belief of conviction. Assistant Coach James Longerbeam, with a master's degree in education and bachelor's degree in physical education and health, took control and supervision of the offensive line, tight ends, and wide receiver players (including Beauregard and S.J.) during the practice session. During these individual skills sessions, Coach Longerbeam distinctly recalls giving his players a water break because he even went over and got water himself from the water trough. The totality of Coach Longerbeam's testimony demonstrated an understanding by assistant coaches of Coach Marsh's policy and methods regarding water breaks during football practice. Assistant coaches understood it was their individual responsibility to send players for water when they were under their personal supervision and in fact, they routinely did so. Further, they understood that when on team breaks between offense and defense team practice sessions, should Coach Marsh blow his whistle, all players would be free to get water at that time, that is, a full-team water break. Coach Longerbeam testified that during the September 7, 1998, football practice every player was in a group under an assistant coach at some point in time, but he does not recall when the other assistant coaches sent their players on water breaks. Joe Hampton, with bachelor and master degrees in physical education, teacher/coach for 32 years, currently employed at Estero High School, Ft. Myers, Florida, and a year officer of the Florida High School Athletic Association gave the following opinion testimony: His studies in conditioning and effects of physical exercise on the human has lead him to conclude that it is important to maintain proper hydration for varsity students; It is vitally important to drink the right kind of fluids, (non-caffeine), water primarily, and lots of it before engaging in physical exercise; If one is not properly hydrated prior to practice requiring physical exercises, what you drink at or during practice will not be sufficient to hydrate you; it may maintain you, but not hydrate you; Varsity students lose weight during varsity football practice and games, from one or two to seven or eight pounds, which is mainly water loss. It takes an average of 24 hours to replace water weight loss through hydration by constant hydration; In his 32 years of experience it is very rare for varsity players to become dehydrated; he has experienced one of two; but it's most unusual; Water breaks are routinely determined by the head coach and usually follow a simple pattern; i.e. one after teams and skills portion of a two and one-half hour practice; another after a time interval determined by the coach who knows the weather conditions, type of practice and knowledge of his kids; He is not aware of any rule or anything that says it is mandatory to have team water breaks. Water breaks are discretionary with each head coach; Varsity players' complaints of hot, tired, hurting, dying, can't make another step, etc. are common players' complaints when players are being pushed by their coaches to reach a higher performance level and to enhance their physical capabilities; He was not present at Atlantic High on September 7, 1998; He had had one and one-half hour walk through sessions where no water breaks were given; but, he had never been in a two and one-half hour practice session where no water breaks were given, and He opined that if a group of players were engaged in a two and one-half hour practice session and no water was made available, it would be inappropriate conduct on behalf of the coaches. Respondent, Glenn L. Marsh, with a bachelor's degree (1990) in exceptional education and eight years' classroom teaching experience prior to accepting the teacher/coach position as Atlantic High School, received the highest rating on his assessment evaluations at each high school by which he has been employed.7 Coach Marsh testified that there were approximately 40 varsity players at the practice on September 7, 1998. Practice began at 9:00 a.m. in the morning, it was a light no-contact practice with helmets only, and no student other than S.J. suffered dehydration or collapsed. Coach Marsh further testified that the entire team, including S.J., endured two-a-day practice sessions beginning in August of 1998 until playing the first varsity game; that thereafter, one-a-day practice sessions were the usual pattern; that during the weeks of two-a-day practice sessions, no student suffered any problems, including dehydration, other than normal bumps and bruises associated with playing the game of football. Coach Marsh's confirmed that his policy and method of supervision was to give his assistant coaches individual authority to give water breaks to students when in individual training/practice sessions. He recalls that during individual groups, Assistant Coach Longerbeam was in charge of managerial things while he, Coach Marsh, was coaching and teaching, and Coach Longerbeam sent those players on water breaks.8 Coach Marsh recalled offering team water breaks during practice in his usual manner of a general statement to all, "Guys, anybody that needs water, get it," which would normally be echoed by assistant coaches. On the day in question Coach Marsh recalls he offered a "guys, anybody need water, get it" team water break before the start of the conditioning exercise phase of the practice. Coach Marsh does not recall any player personally asking him for water or a water break and heard no complaints from players about a lack of available water; nor does he recall seeing any group, other than the group of which he was in charge, actually going for water. Coach Marsh testified that his general group response/comment, given to no one student in particular and given many times in the past to all players, when players would complain about running laps, that is, "I am tired," "golly coach I am dying," was, in effect, "Guys you are not dying. You will pass out before you die." This statement is his general motivational response to players' gripes when running. He does not specifically recall, however, if he made that statement on September 7, 1998, but, admitted on cross-examination that he may have. Coach Marsh testified that his water availability policy change, removing the plastic water bottles and cups from the practice field and replacing them with the single-source water trough, was based upon several concerns: 1) students were distracted by playing and squirting each other; 2) not- withstanding his constant instructions against it, students continued to drink directly from the bottle, thereby increasing the health risk of passing colds, etc.; and 3) there was a lack of accessibility between the two practice fields. Following the September 7, 1998, incident and before September 24, 1998, Coach Marsh testified he met with Ron Pagano, principal of Atlantic High School. Mr. Pagano informed Coach Marsh during that meeting that Atlantic High School's water policy would be "get water every ten minutes no matter what the amount of physical activity, whether running, sitting, or standing, every ten minutes." There was no evidence proffered addressing whether Atlantic High School or Volusia County established, published or made known policy, standards, or guidelines regarding mandatory water breaks for students engaged in high school varsity sports, prior to and on September 7, 1998. Based upon evidence of record and at all times material hereto, Atlantic High School did not have in place a policy, principle, or guideline relating to the issue of water for student athletics engaged in physical activities. When questioned by Petitioner's attorney about newspaper articles containing allegations leveled against him, that players had not been provided with an adequate supply of water, Coach Marsh response was that he took the position that those allegations were untrue and unworthy of his making a public response.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that State of Florida Education Practices Commission issue a final order finding Respondent, Glenn L. Marsh, not guilty of violation of Section 231.28(1)(f) and Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(e), Florida Administrative Code. DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 January, 2001.
The Issue Whether Petitioner has just cause to terminate the Respondent's employment as an educational support employee.
Findings Of Fact Respondent was employed as a behavioral interventionist with the Palm Beach County School District during the 2000-2001 school year. A behavioral interventionist is a non- instructional employee who works primarily with students receiving services through Petitioner's Exceptional Student Education (ESE) Programs. In addition to monitoring performance and behavior of ESE students, Respondent supervised regular education students who were serving in-house suspensions, performed bus and cafeteria duty, and helped maintain discipline throughout the campus. Respondent also served as an assistant football coach. Respondent received specialized training in order to perform his duties as a behavioral interventionist. He received child development training and attended approximately 12-13 workshops dealing with physical restraint and conflict resolution issues. Respondent is not a member of a collective bargaining unit. At the times pertinent to this proceeding, Student 1, a male, was 17-years old and a junior at Forest Hill. Student 1 is 5'10" tall and weighs approximately 260 pounds. Respondent is 6'3" tall and weighs approximately 250 pounds. Respondent is a former professional football player who routinely lifts weights. On December 11, 2000, between 4:30 p.m. and 5:00 p.m., Student 1 was in the area of the outdoor basketball court watching a basketball game. Student 1 had permission to be on the campus of Forest Hill, but he should not have been in the area of the outdoor basketball court. Respondent was in the weight room at Forrest Hill that afternoon demonstrating weight lifting techniques to a group of his football players. After he completed his weight lifting workout, Respondent went to the outdoor basketball court to play basketball. Respondent began playing basketball with a group of students, including students who did not play football. Student 1 could have played if he had wanted to do so. Student 1 was not playing when the acts at issue in this proceeding occurred. Shortly after the game began, Student 1 was standing off the basketball court observing the game when the basketball ball was thrown out of bounds near him. Respondent walked up to Student 1 and said, "why don't you get the ball fat boy?" In response, Student 1 used profane language and was disrespectful towards Respondent. Respondent reacted by tapping Student 1 on the cheek with his open hand. Student 1 asked Respondent why he hit him, but received no response. As Student 1 attempted to walk away, Respondent tapped him again on the back of the head and the two exchanged words. Respondent was not justified in making physical contact with Student 1. Student 1 again addressed Respondent using profane language. Respondent reacted by taking Student 1 to the ground using a technique that he had been trained to use to restrain students. There was a conflict in the evidence as to whether Respondent placed Student 1 in a chokehold when he took him to the ground. The greater weight of the credible evidence established that Respondent did not use a chokehold on Student 1. There was also a conflict in the evidence as to whether Student 1 had become aggressive and whether Respondent was merely trying to restrain Student 1. The evidence is clear that Respondent physically restrained Student 1 because Student 1 had been disrespectful towards him, not because Student 1 had become combative. Respondent was not justified in physically restraining Student 1. Student 1 was on the ground when Respondent released him from the restraining hold. As Student 1 was attempting to rise, Respondent hit him with his forearm, which forced Student 1 back to the ground. Witnesses at the basketball court told Student 1 to stay down, but he attempted to rise and saw Respondent in a three-point position typically assumed by football linemen. Almost immediately, Respondent came at Student 1 again and forearmed him back to the ground. Student 1 fell back to the ground, biting his tongue as he went down. He then got up and began cursing. After an interval of a few minutes, Student 1 asked Respondent why he had hit him and began to spit in the general direction of Respondent. Respondent, believing that Student 1 was spitting at him, grabbed him in the area of the neck and forced him against the fence surrounding the basketball court. Respondent told Student 1, "Don't play with me boy, I'm not a kid." Respondent was not justified in that use of force against Student 1. The incident lasted over a period of several minutes. Student 2 was present during the entire incident and Student 3 was present during the latter part of the incident (when Respondent grabbed Student 1 by the neck and forced him against the fence). Both witnesses corroborated Student 1's version of the events. No other student witnesses testified at the final hearing. Student 1 complained that afternoon to a coach named Coleman about what had occurred and he also told his mother later that evening when he got home. Student 1 complained to his mother that his neck hurt and she took him to a hospital, where he was diagnosed with a sprained neck. On December 12, 2000, Student 1 and his mother returned to the school and complained to Assistant Principal Mark Sagovac, about what happened the afternoon before. Mr. Sagovac thereafter spoke with Respondent, who did not deny the incident had occurred. Respondent admitted to Mr. Sagovac that he called Student 1 a "fat boy" and asked him to get the ball, which had rolled out of bounds. Respondent further told Mr. Sagovac that he pushed Student 1 to the ground with his forearm and forced Student 1 up against the fence because he felt Student 1 was threatening him. After speaking with Respondent, Mr. Sagovac interviewed Student 1 again and spoke to other witnesses. Some time thereafter a meeting was held between Student 1, his mother, Respondent, Mr. Sagovac, and Assistant Principal Green, who is also an assistant principal assigned to Forest Hill. The incident was discussed again and at one point, Respondent apologized to Student 1 and his mother. After the meeting concluded, Mr. Sagovac issued to Respondent a verbal reprimand with written notation for the actions he took on December 11, 2000. Prior to serving the Respondent with the verbal reprimand with written notation, Sagovac did not consult with his principal or anyone in the Petitioner 's Personnel Office or Office of Professional Standards to determine if he was complying with policy or if he was following accepted personnel practice concerning the contemplated discipline. Mr. Sagovac was not complying with school policy when he issued the verbal reprimand with written notation. Mr. Sagovac did not have the authority to discipline Respondent. Shortly after the conclusion of the meeting attended by Student 1, his mother, Respondent, and Mr. Sagovac, a complaint was made to the school district's police department concerning the December 11, 2000, incident. Based upon the complaint, a criminal investigation into Respondent's actions was initiated. There was no evidence as to the status of any criminal charges presented at the final hearing. Petitioner's Office of Professional Standards received information concerning the criminal investigation, which caused it to open its own administrative investigation. After the Office of Professional Standards received the police report and the attached documents, the case was assigned to an investigator. During the Petitioner's investigation, Respondent was placed on administrative leave with pay and assigned to duty at his home. This assignment became effective February 1, 2001. After Petitioner's Office of Professional Standards completed its investigation, it prepared a report of the incident and, consistent with its rules, submitted the case for review to a case management committee. Case management review is a process whereby approximately a dozen high level employees working for the district meet at the direction of the Superintendent to review pending personnel cases which may result in the suspension of employment without pay or the termination of employment. Respondent's case management committee determined that probable cause existed to sustain the allegation Respondent used inappropriate physical force on the student in question. Once probable cause was found, it further determined that the level of the force used warranted a recommendation that Respondent's employment be terminated. Based upon the case management committee's recommendation to terminate Respondent for having engaged in inappropriate physical force on a student, Superintendent of Schools Arthur C. Johnson notified Respondent by letter dated May 8, 2001, that he would recommend to the School Board at its meeting to be held May 16, 2001, that Respondent's employment be terminated and that he be suspended without pay pending the completion of the proceedings to terminate his employment. On May 16, 2001, the School Board voted to accept the Superintendent's recommendation. It is the policy of the Petitioner that no employee is to use physical force with a student unless the employee is breaking up a fight, acting in self-defense, or protecting the student from hurting him or herself.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
The Issue The issue is whether Petitioner should discipline Respondent for immorality, misconduct in office, or incompetency in connection with his supervision, as a high school baseball coach, of a team trip, during which hazing occurred, and his subsequent investigation of the incident.
Findings Of Fact Respondent has been a teacher and a coach for 27 years. He taught and coached in Illinois for 11 years before moving to Florida, where he has taught and coached for the past 16 years. He currently is teaching health, and he sometimes teaches physical education. Respondent holds Florida Educator's Certificate 551145, which is valid through June 30, 2005, and he is certified in health education, physical education, and social science. Respondent has coached basketball, football, and baseball. Most recently, Respondent was the head baseball coach at Coconut Creek High School where he was the Fort Lauderdale Sun-Sentinel Coach of the Year for Broward County three years ago. He coached baseball four years at Coconut Creek High School and the preceding eight or nine years at Fort Lauderdale High School. The events in this case arose during the 2000 season; Respondent did not coach during the 2001 season. During spring break of 2000, Respondent took his baseball team to Orlando and Sebring. The purpose of the trip was to allow the team to play two high-school baseball games against teams from different regions of the state and to visit an Orlando theme park. The trip took place toward the end of the season, prior to the commencement of the district tournament. The Orlando trip extended from Sunday, April 16, through Wednesday, April 19. Twenty-four student athletes went on the trip. In addition to Respondent, the other adults supervising the students were assistant coaches Reynaldo Nieves, Joseph Leone, and Rex Nottage. Respondent's wife was also with him, as were several parents, but they did not share with Respondent and the assistant coaches supervisory responsibility for the students. On arriving in the Orlando area early in the morning, the group first visited Islands of Adventure, a theme park. They finally reached their hotel at about 8:00 p.m. Respondent gathered the students together and gave them directions as to where they could go. He told them they could not leave the motel property without the permission of a coach. Some students wanted to eat; most wanted to shower. Respondent told them they had to be in their rooms by 11:00 p.m. and their lights must be out by midnight. Respondent warned them that he and the other coaches would perform bed checks at these times. Respondent and his wife had arranged the rooms so that the group was together at the motel. Their rooms were on the second or third floor of the motel. Each room accommodated four students. Respondent and his wife were in a room, Mr. Leone was in a room, and Mr. Nieves and Mr. Nottage shared a room. The students' rooms were between the rooms of the adults to enable the adults to exercise closer control over the students. At some point prior to the first bed check, the older students began entering the rooms of the younger students, by trick or by force. A large group of the older students would then overpower the younger student and, typically, apply Icy Hot liniment to a towel and then to the testes of the student. The students were aware that this hazing was likely to occur during this trip. Seven of the students were hazed by nearly all of the remainder of the team. Prior to being hazed himself, D. B. was aware that other students had been hazed and was aware of the form of the hazing because some of the other students had come to D. B.'s room and asked to use the shower. D. B. was a junior, but this was his first year on the varsity, and he knew that the older students would try to haze him too. However, he did not try to contact one of the coaches or parents to intervene in the half hour that D. B. estimates elapsed between the hazing of the last of the other students and his hazing. As had happened to most of the other hazed students, most, if not all, of the older students on the team entered D. B.'s room, pulled down his pants, and applied Icy Hot and shaving cream to his genital area. D. B. yelled and struggled against four or five students on various parts of his prone body. He sustained some minor scratches while he was held down for about one minute. As soon as he was released, D. B. took a shower. He chased the remaining students out of his room, swinging a belt and yelling. While in the shower, D. B. was so angry that he threw soap and shampoo containers in the shower stall. About ten minutes after D. B. was hazed, Mr. Nieves was roaming the rooms and entered D. B.'s room. Petitioner contends that Respondent had allowed Mr. Nieves and Mr. Nottage to leave the motel for dinner from 8:00 p.m. to 10:45 p.m. If so, Respondent, his wife, and Mr. Leone could adequately supervise the students occupying the six rooms between them. However, D. B. testified that the hazing took place around 9:00 to 9:30 p.m., so, if Mr. Nieves arrived ten minutes later, he was gone only until 9:10 to 9:40 p.m. Either way, the record does not reveal any irresponsibility on Respondent's part in allowing his two assistant coaches to leave him, his wife, and Mr. Leone to supervise 24 students for even three hours. When Mr. Nieves looked into D. B.'s room, he found D. B. in a bad mood, angrily throwing things around the bathroom. The door to D. B.'s room was open, so Mr. Nieves walked inside and asked if he was okay. D. B., who was wearing only a towel wrapped around his waist, did not answer, but left the bathroom and stood in front of the wall air conditioning, unit, which was blowing cold air. Mr. Nieves saw about five marks on D. B.'s back and saw that D. B. was beet red. The marks appeared as though someone had been grabbing him. Mr. Nieves offered to get Respondent, and D. B. said to do so. Mr. Nieves thought that D. B. had been wrestling or something. His visit to D. B.'s room had occurred not long before the first room check. Mr. Nieves walked down the hall to Respondent's room and found Respondent inside. Mr. Nieves informed Respondent that D. B. wanted to talk to him. He told Respondent that it looked like something was wrong. Respondent and Mr. Nieves returned to D. B.'s room. They arrived there about three minutes from the time that Mr. Nieves had left the student's room. Respondent entered D. B.'s room ahead of Mr. Nieves and found D. B. standing in front of the air conditioning fan, holding the towel open like he was cooling down. In a conversation that lasted about 30 seconds, Mr. Nieves said to D. B., "Coach is here. Tell him what's wrong." Respondent added, "What's wrong?" To these inquiries, D. B. replied, "Nothing. Don't worry about it." Mr. Nieves and Respondent asked about the red marks, but D. B. said they were nothing and everything was fine. D. B. testified that he did not disclose the hazing because he knew that Respondent would punish the team. He assumed that the team would be upset with D. B. for telling the coach that they had done something of which Respondent disapproved. Somewhat irritated that D. B. had asked to see Respondent and three minutes later declined to tell him anything, Mr. Nieves left the room with Respondent. They then completed the bed check, and Mr. Nieves did not see Respondent again that night. However, Mr. Nieves returned to D. B.'s room about a half hour later. He found D. B. still standing by the air conditioning fan. Mr. Nieves told D. B. that it was not fair to Mr. Nieves to say to Respondent that nothing was wrong. Mr. Nieves then asked if something was wrong. D. B. replied, "They got me, coach." Mr. Nieves did not know what he meant, but thought that D. B. meant some sort of rough-housing. Mr. Nieves asked D. B. why did you not say something to Respondent. Mr. Nieves spent about 15 minutes in D. B.'s room, but did not learn anything more specific. However, D. B. expressed considerable anger to Mr. Nieves. The Icy Hot that came into contact with D. B.'s penis was most painful. The next morning, the pain was somewhat reduced. Early that morning, the team went to a baseball field to prepare for a game that day. They did a lot of situational baserunning so the fielders could practice. Because D. B. was not a starter, he and the other nonstarters had to do much of the baserunning. He displayed no problems running in the morning. However, hours later, during the pregame practice, a ball was hit toward D. B. in the outfield. He charged it, but it got by him. Instead of turning and running after the ball, as Respondent required of all players, D. B. turned and walked toward the ball. Seeing D. B. and another student not hustling, Respondent pulled them off the field. When Respondent demanded to know why D. B. had not run after the ball, D. B. said that "my balls are on fire." D. B. had a poor attitude at times and was stubborn. Without responding meaningfully to D. B.'s explanation, Respondent benched both players for the entire game. D. B.'s explanation is discredited due to his ability to run without impediment in the morning. D. B. had called his parents Monday at around noon and had told them what had happened the prior evening. D. B. called them again after the afternoon game. During the first call, D. B.'s parents told him to defend himself if necessary and not to worry about talking to Respondent about the hazing. Respondent had not been feeling well Sunday night. By the time of practice Monday morning, his throat was so sore that he had to have his assistant coaches direct the students on the field and yell instructions. After the game, in which Respondent's team had played poorly and lost, Respondent spoke only briefly to the team and allowed Coach Nottage to yell at the students to fire them up and make them work harder. After the team had returned to the motel, Mr. Nieves talked to D. B.'s roommates. He was somewhat concerned about D. B. because, after the game, when he had asked the student what was wrong, D. B. had only laughed as if he were mad. The roommates talked vaguely about Icy Hot, but they were unwilling to be more specific. Around 8:00 or 9:00 p.m. Monday at the motel, D. B. came to Respondent's room and asked if he could talk to the coach for a minute. Respondent said he could. D. B. then told Respondent that he had had Icy Hot put on his testes. Whispering, Respondent asked if he was alright and what did D. B. want Respondent to do about it. The record is unclear whether he asked this in a challenging or inquisitive tone. D. B. did not add more details. On Tuesday morning, the team departed Orlando in vans headed for Sebring, where they were to play another game Tuesday night. Respondent had been quite sick Monday night, unable to swallow or talk. By Tuesday, he was even more sick. No one spoke to him about D. B. or hazing. With considerable effort, Respondent was able to escort the team to the Sebring motel, and then he went directly to a nearby hospital emergency room. Diagnosed as having pharyngitis, Respondent obtained an injection of antibiotics, which provided him relief the next day. Scheduling problems resulted in postponing the Sebring game, so that the team did not return to the motel until after 11:00 p.m. Respondent directed the students to go directly to their rooms and told them that there would be a midnight bed check. Late the next morning, Wednesday, the team left Sebring to return to Fort Lauderdale, where they arrived at 3:00 p.m. One of the parents traveling with the team told Respondent at a gas stop that D. B. had called his parents. Respondent summoned D. B. and complained about D. B. calling his parents without first informing Respondent of the problem. The conversation was brief because the group was waiting in their vans. D. B. replied, "Well, coach, you know what happens." Respondent answered, "I don't know what happens. Go get in your van." On the way back to Fort Lauderdale, Mr. Nieves told Respondent what he knew about hazing in the form of older students applying Icy Hot to the genitalia of younger students and, in some cases, paddling younger students. Respondent expressed his frustration that D. B. had not complained to him about the hazing. When they returned to Fort Lauderdale, Respondent told D. B. that he wanted to speak to him and his father, who was there to pick him up. However, D. B. and his father left the school without speaking to Respondent. Respondent decided to call a team meeting to find out what had happened. Respondent called D. B.'s mother to assure that D. B. would come to the meeting, but she said that he was at work and that she had already called the school board. D. B. was not at work. In the team meeting, Respondent warned the students that hazing was very serious. He asked for those persons directly and indirectly involved to identify themselves. Various students began raising their hands, admitting to various levels of involvement, and Mr. Nottage recorded their names, at Respondent's direction. Respondent then warned the students that the school board was involved and there could be criminal punishments for certain persons. He told the students that there was nothing that he could do about these consequences, but he would take his own actions. At this point, many of the students began retracting admissions. Feeling that the notes had become useless, Respondent obtained the notes from Mr. Nottage and discarded them later that weekend. Prominent among the many differences in testimony concerning the events of this trip and its immediate aftermath is a difference in recollection between Respondent and Mr. Nieves concerning a conversation between the two of them following the meeting. Mr. Nieves testified that Respondent instructed him to deny that the notes existed, and Respondent denied that this is true. Such dishonesty, if true, would merit punishment. It is possible that Respondent did ask Mr. Nieves to conceal the truth in order to protect Respondent's students, who had made confessions prior to understanding the potential administrative and criminal consequences. Perhaps Respondent regretted his role in securing this inculpatory information. On the other hand, Mr. Nottage, as well as over 22 students were at this meeting (another student had failed to attend), so Respondent had to know that such a concealment was unlikely to go undetected. Most importantly, though, Mr. Nieves was a most unconvincing witness. His recollection of details was poor, contradictory, and entirely inconsistent with his apparent intelligence. His demeanor was poor. The Administrative Law Judge was left with the opinion that Mr. Nieves was lying at the time that he first provided statements concerning the events--for some reason, trying unfairly to inculpate Respondent or to exculpate himself--or he was lying at the hearing--belatedly, trying to protect Respondent. On balance, it is impossible to credit Mr. Nieves' testimony on this crucial point. After talking the matter over with Mr. Nieves and Mr. Nottage (Mr. Leone had already left before the meeting), Respondent decided to punish the students as best he could by making them run. Those who had actually touched the younger students had to run 10 miles. Older students who had stood by and encouraged or supported the hazing had to run an intermediate distance. Even the victims, such as D. B., had to run because they had not reported the hazing, but their distance was the shortest. The team had a game the next morning. Late in the afternoon or early in the evening on Thursday, Respondent called his supervisor for athletics, the Coconut Creek High School athletic director, and reported the hazing in general terms. The athletic director told Respondent that he had done the right thing by calling him and said to come see him Monday, when school was back in session. On Saturday morning, Respondent required the students to run the distances that he had determined appropriate. He also informed the team that he would be recommending to the principal that the baseball team not take field trips. The athletic director later suggested that Respondent not make that recommendation. D. B. and his parents have filed a civil action against the school board for damages arising out of the incident. School officials have known that hazing has been a problem in the past at Coconut Creek High School, although more with the soccer team. In 1997, the athletic director asked Respondent, as the baseball head coach, to draft a letter stating a policy prohibiting hazing. Addressed to the parents of baseball players, the letter states in part: "The athletic department has a policy of zero tolerance when it comes to "initiating" or "hazing" a fellow student. Anyone guilty of participating in a hazing or a form of initiation will be immediately dismissed from the team." Respondent and the athletic director signed the letter. At the start of the 2000 season, Respondent warned the students on the team that he would not tolerate any sort of misbehavior, including hazing. Respondent had not been aware of any hazing incidents on the baseball team since 1997. As already noted, other students knew of the continuation of the practice. Some of the parents of the older students also knew of the practice, at least as it had been inflicted on their sons. However, it does not necessarily follow that what a student shares with a parent, he also shares with his coach. Petitioner has failed to prove incompetency, lack of fitness, inefficiency, or incapacity on the part of Respondent. Nor has Petitioner proved immorality. The evidence does not establish that Respondent knew or had reason to know that hazing was about to occur or that hazing had occurred. At all times, Respondent was in charge of 24 students, and, most of the time, he was sick--after Sunday, very sick. The scrutiny that Respondent could reasonably be expected to give the D. B. situation, especially given the student's reluctance to make a straightforward declaration of what happened, must be assessed n light of these circumstances. As the last person to be hazed, D. B. had ample opportunity to alert the coaches. After the hazing, D. B. repeatedly declined to disclose the problem to Respondent. D. B. knew that Respondent did not condone hazing. D. B. knew that, rather than ignore a hazing complaint, Respondent would punish the responsible players, and this would draw unwanted attention to D. B. Seeking advice from his parents, D. B. was reinforced in his earlier determination not to seek the effective remedies that he knew were available within the structure of the team. Petitioner has also failed to prove misconduct in office. Again, Respondent's supervision of the students was adequate. His investigation was sufficient for imposing intra- team discipline. His apparent departure from school policy of dismissal from the team may be explained by Respondent's awareness that the school board and possibly law enforcement would also investigate the matter and impose their own sanctions; presumably, the athletic department policy was intended to operate in isolation. Although Respondent could have informed the athletic director of the problem Wednesday night or Thursday morning, Respondent did so later Thursday. This brief delay caused no prejudice, as Respondent's supervisor assured Respondent that he had done the right thing and he would visit him the next Monday.
Recommendation It is RECOMMENDED that the School Board of Broward County, Florida, enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of September, 2001, 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 20th day of September, 2001. COPIES FURNISHED: Dr. Frank Till Superintendent School Board of Broward County, Florida K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Honorable Charlie Crist, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 Robert F. McKee Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675-0638 Jerry W.Whitmore, Bureau Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Clarence Dixon, Respondent, holds Teacher's Certificate No. 435879, Rank III, covering the area of physical education, which expires on June 20, 1984. At all times material hereto Respondent was employed by The School Board of Broward County at its facility known as Piper High School located at 800 Northwest 44th Street, Sunrise, Broward County, Florida. In that cause of action styled School Board of Broward County v. Clarence Dixon, Division of Administrative Hearings Case No. 81-1223, the Honorable R. T. Carpenter, Hearing Officer for the Division of Administrative Hearings, entered his Recommended Order directing [sic] that the Respondent, Clarence Dixon, be discharged as a teacher by The School Board of Broward County. Before the Broward County School Board acted on the Recommended Order of the Hearing Officer, Respondent submitted his resignation, further proceedings against him were terminated and no final order was entered by the Broward County School Board regarding the charges that had been preferred against Respondent. Exhibit 2, the Recommended Order in Broward County School Board v. Clarence Dixon, was admitted into evidence over objection by Respondent, for the limited purpose of showing that the hearing was held. Respondent's stipulation of admitted facts (Finding No. 3 above) admits more than that for which Exhibit 2 was admitted into evidence. The investigation of Respondent's conduct started when Sandra J. Brown, a security officer at Piper High School, overheard some students in the hall discussing Respondent. She then called one of these girls to her office to inquire into any contacts she had with Respondent. When it became evident that Respondent's statements or conduct towards the student may have been inappropriate, the student was taken to the Assistant Principal who, after hearing the story, directed Brown to investigate. As a result of this investigation, the School Board brought charges against Respondent, and, after those charges were disposed of, the proceedings here involved were instituted. Although Respondent disputes the testimony of the three complaining witnesses, McGee, Johnson and Snelling, their testimony was credible and believable, Some testimony was presented to show that Ms. Brown was carrying out a vendetta against Respondent in conducting the investigation; that at least one of the complaining witnesses had a "bad" reputation, meaning that she "came on to men"; that Dixon had told Ms. Brown about a dream he had about her involving sex; that Respondent, like other coaches specifically, was looked up to and frequently approached by students to discuss their problems; and that these incidents had been blown out of proportion to their seriousness. Evidence of misconduct unrelated to the specific charges involving McGee, Johnson and Snelling, has been disregarded as irrelevant to the charges here under consideration. On one occasion during the 1980-1981 school year at Piper High School Respondent approached Lesia McGee, a 16-year-old sophomore, in the hall between classes and commented on the clothes she was wearing and said the next time he saw her in purple slacks he would, as she testified, "tongue me to death." By that, McGee understood that he meant to kiss her. Valynda Johnson was a junior at Piper High School during the 1980-1981 school year and she had no classes under Respondent. She and Respondent talked on campus about how she dressed and various things unrelated to school. On several occasions he sent passes to her to leave class to come talk to him. Some of these times she was excused by her teacher and the conversation did not relate to school work. On one occasion Respondent asked Johnson when she was going to let him do it to her. When she replied "What do you mean?," he responded "You know what I mean." Johnson understood him to be talking about sex. Respondent asked Johnson to meet him at the 7-11 store down the street from the school and called her at her home on one or two occasions. She never went out with Respondent and no physical contact was made between Respondent and Johnson. Respondent had a gold chain delivered to Johnson from him by one of the football players. Respondent's testimony that he found this chain under a garbage can at school and, when he held it up in class to ask whose it was, Johnson claimed it, is not believed. The Amended Administrative Complaint alleges Respondent gave a gold bracelet to Renee Snelling and this complaint was amended at the close of the hearing to change the bracelet to a chain to conform to the evidence. No evidence was submitted that Respondent gave Snelling either a chain or a bracelet. Renee Snelling was an 18-year-old student at Piper High School during the 1980-1981 school year. On one of the first occasions she talked to Respondent he told her she should be a model. Her career as a model was the dominant theme of most of their subsequent conversations. Respondent suggested she go to college and become a model. On one occasion he asked if they had sex would she tell anybody. On another occasion he told her he had a necklace for her. He never cave her the necklace but showed it to her one time when he removed it from his wallet. He called Snelling at her home on one or more occasions to ask her to go out. When Respondent returned from a trip to Moorhead College in Kentucky with some of the football players he took there in his own car to increase their interest in college, he brought back a T-shirt which he had delivered to Snelling by one of the football players. On one occasion Respondent sent a pass to Snelling but she does not recall if she left class to see him in response to the pass. The only occasion Respondent mentioned sex to Snelling was when he inquired if she would tell. The policy at Piper High School regarding passes is that they are used only with respect to school business, and rarely. If a student is in a class he cannot leave that classroom without the permission of that classroom teacher even if he receives a pass from another teacher. Respondent graduated from Pahokee High School in 1974 where he was a football star and a campus leader. With the ecouragement of his coaches, Respondent obtained a football scholarship at Bethune-Cookman College, from where he graduated in 1979. He is appreciative of the help and encouragement he received from his coaches and teachers and desires to repay that debt by helping others as he was helped. In doing this, he encourages all of the kids he talks to to go to college and get an education. When Respondent resigned from Broward County School System, he obtained a job at Pahokee High School in the Special Education Department teaching students with learning disabilities. His principal feels Respondent is doing an excellent job at Pahokee and that he is an asset to the school. During his year at Pahokee Respondent volunteered to coach and led the girls' track team to runner-up position in the state championships. He also took over the cross-country track team, which had been cancelled, and led this team to the district championship. He has continually encouraged students to continue their educations throughout high school and has gone out of his way to help them get scholarships, grants and other assistance towards this goal. Both Respondent and his wife have taken students, with parental consent, to out-of-town games, have had students over for dinner, have driven them to athletic contests, have provided transportation home from football practice which extended beyond the bus schedule, and generally have devoted considerable after-school-hours time to helping and encouraging students to attain higher standards in life.
Findings Of Fact Prior to the commencement of the 1977-78 school year, the position of Assistant Principal at Hardee High School became vacant. The vacancy was properly advertised, and very little interest was shown in the position. The Petitioner, Jerry Kapusta, was at that time employed at Hardee High School as a Physical Education teacher, Head Football Coach, and Head Track Coach. Kapusta applied for the vacant position. The Principal of Hardee High School recommended that Kapusta be hired as Assistant Principal. Acting in part on the basis of the Principal's recommendation, and in part upon his own independent examination of Kapusta's qualifications, the Superintendent of Public Instruction recommended to the School Board that Kapusta be hired as Assistant Principal at Hardee High School. A motion to approve the Superintendent's recommendation was defeated at a School Board meeting by a vote of 2 to 2. One member of the Commission was absent. Subsequently, the Superintendent made a decision to replace the position of Assistant Principal with the position of Dean of Students. The Superin tendent recommended that Kapusta be hired for this position. At a School Board meeting conducted approximately two weeks following the earlier meeting, the Board rejected the recommendation by a vote of 3 to 2. Members of the School Board who voted against the recommendation testified that they did so primarily because Kapusta was not properly certified by the State Board of Education in the fields of supervision and administration. School Board member Barlow testified that she voted against the recommendation because Kapusta was not certified, because she felt he was doing a good job as football coach, and that he should stay in that position, and because she felt that Kapusta's lack of certification would hinder the Board's efforts to get the schools accredited by the Southern Association of Colleges and Schools. School Board member Knight testified that she voted against the recommendation because of Kapusta's lack of certification, and because he was doing a good job as football coach. School Board member Gilliard testified that he voted against the recommendation due to the lack of certification and because be wanted Kapusta to remain as football coach. Sometime during May, 1969, the School Board adopted policies which were included in the Board's policy book. The qualifications for the position of Assistant Principal were among the policies adopted. One of the qualifications was as follows: Candidates for assistant principalships. . . must hold a rank II or higher certificate covering administration and supervision at the level for which the applicant is to be employed or covered by a special permit. Similar qualifications were adopted for other administrative positions. This policy was readopted by the School Board each time that it readopted its policy manual. Since the policy was adopted the School Board has consistently ignored it. Joint exhibits 6 and 7 list persons who were hired by the Board to fill administrative positions since the policy was originally adopted. The overwhelming majority of persons hired for administrative positions since the policy was adopted were not properly certified according to the policy. Certification of administrative personnel as administrative personnel is not among the requirements for accreditation set out In the Southern Association of Colleges and Schools' "Standards of the Commission on Secondary Schools." The Petitioner, Jerry Kapusta, has adequately performed his duties as Physical Education Teacher, Head Football Coach, and Head Track Coach at Hardee High School. Kapusta is certified as a physical education teacher and health instructor for Kindergarten through twelfth grade, and for junior colleges. He is not certified as a supervisor or administrator. He would require approximately twenty-one (21) hours of additional course work in order to obtain such certification. It is Kapusta's intention to enroll in courses that would lead to his certification as an administrator. Kapusta is the most qualified person to have applied for the position of Dean of Students at Hardee High School. Other than his lack of certification, and the desire that he remain as Head Football Coach, no testimony was presented which would establish that Kapusta is other than qualified for the position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RRECOMENDED: That a final order be entered accepting the Superintendent's recommendation that the Petitioner/Appellant, Jerry Kapusta, be appointed to the position of Dean of Students of Hardee High School, and appointing him to that position. RECOMMENDED this 12th day of December, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Burton, Esquire Burton, Patarini & Collins, P.A. Post Office Box 420 and 605 Wauchula, Florida 33073 John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
