The Issue Whether the license of the Respondent should be revoked, or whether a lesser penalty should be imposed.
Findings Of Fact Respondent, William T. Simpson, who holds Florida Teaching Certificate No. 94266, was suspended without pay from his position as principal of the Adult Division, St. Augustine Technical Center, St. Augustine, Florida on May 28, 1979, by W. Douglas Hartley, District School Superintendent, St. Johns County, Florida, pursuant to charges that Respondent misappropriated funds (Transcript, Page 54). Petitioner, Professional Practices Council, conducted an investigation, and its Executive Committee found probable cause to believe Respondent was guilty of acts providing grounds for revocation of his teaching certificate. The Executive Committee recommended to the Commissioner of Education that he find probable cause existed to believe that Respondent committed acts which provided grounds for revocation of Respondent's teaching certificate. The Commissioner found probable cause and directed that the "Petition for the Revocation of Teacher's Certificate" be filed. Respondent denied the material allegations and requested an administrative hearing. Subsequent to his suspension on May 28, 1979, Respondent resigned his position with the St. Johns County School Board and made restitution to the school board in the amount of $2,073.43. At the time of the administrative hearing Respondent was teaching at Edward Waters College in Jacksonville, Florida, which requires no state teaching certificate (Transcript, Page 79). Prior to commencement of the hearing, the parties filed the following instrument, which is copied in toto for clarity: JOINT STIPULATION AS TO JURISDICTIONAL MATTERS, MATERIAL ALLEGATIONS, AND CONCLUSIONS OF LAW The Petitioner, Professional Practices Council, and Respondent, William T. Simpson, by and through their undersigned attorneys, jointly stipulate to the below-listed matters and consent to the admission of this Stipulation as evidence at the formal hearing of this cause scheduled for February 20, 1980, and pursuant to their stipulation and agreement, would state: JURISDICTIONAL MATTERS That the evidence would show that the Commissioner of Education, Ralph D. Turlington, pursuant to Section 231.18, Florida Statutes, and Section 6A-4.37, Rules of the State Board of Education, by letter dated October 1, 1979, found probable cause existed and directed the filing of this Petition for the Revocation or Suspension of teacher certificate. That pursuant to Section 6A-4.37, Rules of the State Board of Education, Petitioner has authority to file the Petition at issue in this cause. MATERIAL ALLEGATIONS That, on or about April 25, 1979, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $95.00, collected by Dick Reis for a class in natural childbirth when these funds were placed in his care. That during the 1978-1979 school year, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $45.00 turned in to him by Doris Blackshear which were fees for a slimnastics class. That, during the 1977-78 school year, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $105.00 which were fees collected from the chemistry for nurses class and had been placed in his care and custody. That, during the winter of 1978, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $75.25 from the sale of books for the chemistry class for nurses and which had been placed in his care and custody. That, during the 1978-79 school year, William T. Simpson failed to turn in or deposit into the St. Augustine Technical Center internal accounts fund registration monies received from 1) Mary Hutchins, 2) Clement Hutchins, 3) Carrie Jones, 4) Alice Terry, 5) Tammy Hill, 6) Sharon Wheeler, 7) Sandra Pomar, 8) Pauline Brown, 9) Shirley Gatchell, 10) Marge Supinger, 11) Shirley Foster, 12) Mary Robinson, 13) Enid Taylor, 14) Marie Peterson, 15) Mary Robinson, 16) Margaret Darty, and 17) Christopher Tipton, totaling approximately $545.00, which had been personally received by him.
Conclusions That the Petitioner and Respondent stipulate that the above-alleged stipulated facts are in violation of Section 6B-1 and Section 6B-5, Rules of the State Board of Education and St. Johns County School Board policies 9.24(6)(a)(7)(8)(9). That Respondent has made restitution to the St. Johns County School Board in the amount of $2,073.43. A "Motion to Strike and Answer of Respondent," filed by the Respondent on December 13, 1979, was withdrawn by Respondent, and allegations number 5 and number 7 of the Petition for Revocation of Teaching Certificate were dismissed. A ruling on the Motion to Dismiss allegation number 8, which alleged Respondent made telephone calls for which he did not pay was reserved and thereafter the Motion was denied. Petitioner called as witness the business manager of the St. Augustine Technical Center, who identified a telephone log entered into evidence as Petitioner's "Composite Exhibit 1" without objection. Many long distance calls were made between 1977 and 1979 by Respondent Simpson to telephone number 387- 1435 in Jacksonville, Florida. Sixty-two (62) calls were unlogged, and forty (40) calls were logged. The telephone number was traced to Jacksonville in Duval County and found to be registered in the name of a woman introduced by Respondent Simpson variously as his friend and companion and his fiance' (Transcript, Pages 18, 33 and 42). These personal long distance telephone calls totaled $74.79, and Respondent has not reimbursed the St. Johns County School Board for these calls. The Petitioner, Professional Practices Council, has recommended that a final order be entered revoking Respondent's teaching certificate for a period of ten (10) years. Respondent has recommended that his privilege to act as an administrator in the State of Florida be suspended for a period of two (2) years. In mitigation of penalty, Respondent Simpson presented six (6) character witnesses. The Superintendent of Schools had known Respondent since about 1961 and had had no complaints of his classroom work as a high school English teacher or thereafter when Respondent was moved to administer the adult program until the problem of misappropriating funds came to the superintendent's attention. The superintendent would not employ the Respondent again in the adult education program or as an administrator, but hopes that Respondent has learned a lesson and after a probationary period would be agreeable to placing him in a classroom as a teacher (Transcript, Page 51). A member of the Board of Education would have no reservations about sending his children into a class taught by Respondent Simpson but would not like to have him as an administrator handling money (Transcript, Page 59). The Director of the Vocational, Technical Adult Program at St. Augustine Technical Center felt that Respondent Simpson had done an excellent job until the last eighteen (18) months of his administration, when his domestic problems caused him to reach a plateau and lose interest in his work (Transcript, Pages 61 and 62). The Director did not consider the taking of funds by Respondent Simpson "an insignificant mistake," but looked at the total picture of the man and would have no reservation about sending his children into a classroom where Respondent was teaching. The Supervisor of Secondary Instruction for the school board holds Respondent Simpson in high esteem as a teacher and, except for handling money, feels Respondent is a good administrator. An associate dean at St. Johns River Community College had found Respondent helpful and a good educator. Respondent Simpson's minister felt he was concerned about the students he instructed and worked well with the parents (Transcript, Page 74). Petitioner, Professional Practices Council, and Respondent Simpson submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that the teaching certificate of Respondent Simpson be revoked for a period of five (5) years from the date hereof, at which time he may apply for a new certificate as provided in Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 18th day of April, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Robert M. Harris, Esquire 220 East Forsyth Street Jacksonville, Florida 32202 Commissioner Ralph D. Turlington Department of Education Plaza Level 08 The Capitol Tallahassee, Florida 32301 Hugh B. Ingram, Jr., Administrator Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32301
Findings Of Fact Introduction At all times relevant hereto, respondent, Blondell Williams, was a fifth grade teacher at Poinciana Park Elementary School (PPES) in Miami, Florida. She was under a continuing contract as an elementary teacher for petitioner, School Board of Dade County (Board). She has been a teacher in the school system since 1981. On March 18, 1987 the Board voted to suspend Williams without pay effective that date for "misconduct in office, willful neglect of duty and gross insubordination." Its decision resulted in Williams requesting an administrative hearing. She has remained suspended from her job without pay during the pendency of this proceeding. The charges are based upon three counts of alleged illicit misconduct as set forth in the Amended Notice of Charges issued on February 13, 1988. The alleged illicit conduct generally includes consumption of an alcoholic beverage on campus, sleeping in class, fraudulently obtaining a lunch, excessive tardiness and absenteeism, repeatedly failing to follow various orders, and demonstrating incompetency in the classroom. These charges will be discussed separately hereinafter. Consumption of Alcoholic Beverages On February 2, 1987 respondent left campus during lunch hour to visit her father who was ill. When she returned, she was required to sign in on a roster which was in the reception area outside the principal's office. Williams entered the office area and went to the sign-in roster maintained by the principal's secretary, Delois Parker. Sitting next to Parker was Nena Brown, a system aide, and Mary White Blue, a teacher's aide. Williams was carrying a clear plastic cup containing a light pink beverage which she had brought from her car. The cup was then approximately one-quarter filled. After signing in, and while turning around, Williams accidentally spilled the beverage on Brown's leg and hand and on the carpet. Although Brown did not detect the nature of the beverage, Blue and Parker immediately detected the smell of alcohol. Another teacher, Silvia Munoz, then entered the room and also detected the smell of alcoholic beverages. At about the same time, Parker called the principal, Lawrence H. Crawford, out of his adjoining office to observe the incident. After examining the carpet, Crawford concluded that the beverage contained alcohol. Thereafter, he questioned Williams, who admitted she had drunk about a quarter of a cup of "White Mountain Cooler" taken from a bottle in her car. Crawford instructed Williams to bring the bottle to his office, and after examining the label on the bottle, he confirmed it was an alcoholic beverage. At hearing, Williams acknowledged that she had brought a cup of the beverage on campus during school hours and consumed a small amount. According to Williams, the bottle had been left in her car by a friend from the night before, but she denied knowing it contained any alcohol. This contention is not accepted as being credible since the beverage had an alcoholic odor, the label on the bottle reflected its alcoholic content, and Williams acknowledged she knew it was an alcoholic beverage at a conference for the record held on February 3, 1987. Accordingly, it is found that Williams was in the possession of, and consumed, an alcoholic beverage on campus during duty hours. However, the charge that Williams was "under the influence of an alcoholic beverage" while on duty was not established. Sleeping in Class On a warm spring day morning in 1986, the assistant principal of PPES, Terrance Armbruister, had an occasion to visit Williams' classroom. His visit was prompted by Crawford who had directed Armbruister to check out complaints that Williams was sleeping in class. After knocking on her classroom door, he unlocked it, entered and observed Williams with her head resting on her desk. He approached her but Williams did not move. Finally, she raised her head in a startled fashion as if she had just awoken. Armbruister then instructed her to wash her face and refresh herself. On or about March 28, 1986 P. J. Harden, an assistant principal in charge of curriculum at PPES, was monitoring the classroom next to Williams. The two classrooms were divided by a partition. Because of noise caused by students in Williams' classroom, Harden had difficulty monitoring the class. He pulled the partition open and observed Williams with her head on her desk asleep. He watched her sleep for approximately five minutes until a student shook Williams and awoke her. Williams apologized to Harden and promised it would not happen again. According to Harden, this was respondent's reply on every occasion that she was caught sleeping. On the afternoon of November 11, 1986 Harden again had an occasion to visit Williams' classroom while escorting a prospective teacher around the school. He found her asleep even though she was supposed to be teaching a class. To avoid embarrassment, Harden declined to allow the guest to enter the classroom. He then awoke Williams and told her to report to the principal's office. Harden stated that he found Williams sleeping in her classroom on a number of other occasions although he was unable to give specific dates. On each occasion, she was sent to the principal's office and an administrator would be assigned to cover her classroom. At no time did Williams ever give an excuse to Harden for her actions other than saying she had a second job which prevented her from getting a regular night's sleep. No Free Lunches The Amended Notice alleges that during school year 1986-87, Williams was guilty of "fraudulently obtaining and consuming school provided, student lunches." This charge stems from an incident on or about December 11, 1986 when respondent approached the cashier at the school cafeteria and told the cashier to give her a lunch without charge and to record it as being a free lunch given to a student. The cashier complied with Williams' instructions. By chance, the principal learned of this and confronted respondent with the charge. Williams admitted she had obtained an unauthorized free lunch. Her only excuse was that she was short of funds and had seen another teacher do it on one occasion. At Crawford's direction, Williams reimbursed the school for the meal. Excessive Tardiness and Absenteeism The school day at PPES began at 8:15 a.m. each day and lasted until 3:20 p.m. Teachers were expected to be in their classrooms by 8:20 a.m. so that they could greet their students before classes began at 8:30 a.m. Williams was aware of this requirement and was reminded of it from time to time by her supervisors. In addition, teachers were given thirty minutes for lunch. If a teacher left campus during lunch hour, he or she was expected to sign in and out on an attendance roster maintained in the principal's office. Even if a teacher left campus during lunch hour, the lunch period was still only thirty minutes, and any additional absence by a teacher required authorization from the principal's office. Williams was aware of this policy and understood that a failure to comply with these instructions was a violation of school policy. Under school policy, and in accordance with instructions in the teacher's handbook, a teacher was obligated to call the principal's secretary if he or she was going to be late to school. This call was expected to be made prior to 8:00 a.m. so that the principal could assign an administrator or other teacher to the classroom until the teacher reported to work. In addition, if a teacher knew he would be absent from school the following day, he was expected to telephone the principal's secretary before 2:00 p.m. on the day prior to the absence. If the absence was not known until after 2:00 p.m., the teacher was expected to telephone an assigned number between 7:00 p.m. and 10:00 p.m. that evening, or at 7:00 a.m. on the day of the absence. This enabled the school administration to timely obtain a substitute teacher. Williams was aware of these requirements. During school year 1984-85, Harden was the assistant principal in charge of curriculum at PPES. His responsibilities included counseling and meeting with teachers who were tardy or absent. On or about October 19, 1984 Harden met with Williams concerning her "continuous" tardiness in reporting to school each morning. She was told that the school day for teachers began at 8:15 a.m. Despite this warning, Williams was late to work on October 19, November 29 and December 4, 1984. This prompted another meeting by Harden and respondent on December 4, 1984. Williams was given a memorandum advising her that she had to be at school by 8:15 a.m. each morning. At the meeting, Williams explained she had a second job which lasted late into the night and enabled her to catch only a "catnap" in the early morning hours. Harden instructed her to set her priorities in order and to adhere to the school attendance requirements. Because of continuing tardiness and absences from work, Williams received another memorandum from Harden on January 24, 1985. The memorandum cited Williams for leaving campus on January 12 and 17, 1985 without authorization and being late to work on January 17. The two held a conference for the record on January 31, 1985 concerning these problems. On March 7, 1985 Crawford sent Williams a memorandum stating that he had "serious concerns about (her) tardiness and (her) habit of illegally leaving the campus during the school day." Another conference for the record was held on March 15. At the conference Williams again gave an excuse of having a second job as well as having problems with a boyfriend. She was told that she must comply with attendance requirements and not let the second job interfere with her primary job of teaching. On July 18, 1985 Williams received a memorandum from Harden for reporting late to work on July 17 and missing a homeroom assignment. The memorandum advised her to immediately remedy the situation and offered to help her if assistance was needed. Despite her poor attendance record, Williams was given an "acceptable" rating and recommended for employment in her annual evaluation rendered on May 17, 1985. There was, however, a comment that a "conference for the record for tardies" had been held during the school year. Williams' attendance and punctuality record did not improve the following school year. She was given at least five memoranda between July, 1985 and January, 1986 concerning her tardiness or absences. She was counseled by Armbruister on October 22, 1985 and specifically told to review the faculty handbook concerning attendance requirements. Armbruister spoke with her again concerning the same problems on November 12, 1985. Because the problem persisted, school officials felt compelled to hold a conference for the record on January 27, 1986. At that time, Williams attributed her difficulties to a second job, problems with a boyfriend, a "peeping tom" in the neighborhood who kept her from sleeping, and no telephone. She admitted she was wrong and indicated she would try to do better. Despite this meeting, Williams took an unauthorized leave at lunch on January 31. This prompted a conference with Armbruister the same day to discuss the latest incident. Williams was given a memorandum advising her to review a summary of the conference for the record held four days earlier and to follow the school's recommendations. In school year 1986-87, Williams' erratic attendance and lack of punctuality continued. As of December 16, 1986, which was roughly halfway through the school year, Williams was late or absent forty-three out of seventy- five workdays. Because of this continuing pattern, a conference for the record was held by respondent and Crawford on October 9, 1986. Williams was found to be deficient in the area of professional responsibility and placed on prescription until December 19. This meant she had to fulfill certain conditions by the end of the prescriptive period. Among other things, Williams was required to arrive daily at work by 8:00 a.m., to timely telephone the office about any absences, to submit a written statement explaining each absence, to report to an administrator or office staff member upon arrival to school each morning, to have up-to-date emergency lesson plans, and to read the teacher contract and teacher assessment handbook. In the month of January, 1987, Williams was tardy on eleven mornings and absent from work on six days. In February, she was tardy the morning of February 2. This was also the day that Williams brought the alcoholic beverage on campus during lunch hour. An emergency conference for the record was held the following day, which was her last day at PPES. Failure to Follow Orders The Amended Notice alleges that, during school years 1984-85, 1985-86 and 1986-87, Williams committed acts of gross insubordination, including . . . repeatedly failing to follow ordered procedures . . . for reporting absences, . . . procedures concerning her morning arrivals at school, . . . procedures documenting absences, . . . procedures concerning lesson plans, records and student report cards, . . . orders to stay awake while (performing) . . . assigned duties, . . . orders concerning tardiness after lunch, (and) . . . orders to not leave the school campus other than during her lunch period. After being placed on prescription on October 10, 1986, Williams was required to fulfill certain requirements enumerated in finding of fact 18. However, she failed to notify an administrator or office staff member upon arrival at school each morning from October 13 through December 15 except for the week of October 13. She also failed to submit a written explanation of her absences on October 27 and 29, November 3, 18, 24 and 25, and December 2 and 3, 1986. She failed further to timely advise the school of absences on October 21 and 29, November 24 and December 2 and 3, 1986. All such failures were in direct contravention of the written prescription. Although Williams contended such violations were not willful, it is found they were intentional. Other than a reference to Williams' failure to timely prepare lesson plans during an undisclosed part of school year 1985-86, and a prescription requiring her to prepare emergency lesson plans in October, 1986, the Board did not establish that Williams repeatedly failed to prepare lesson plans, report cards and other unnamed "records." Williams was observed sleeping in class on two specific occasions during the school years in question. On a third occasion, an administrator observed her with her head down on her desk as if asleep but could not say for sure that she was sleeping. Assistant principal Harden also said Williams was caught sleeping on a number of other occasions but did not identify the dates. There being only three specific times on which Williams was found sleeping, it is found that no direct disobeyel of orders occurred on the part of respondent as to sleeping in class. Williams was given repeated instructions since 1984 to be punctual for work each day. Despite these orders, she continued to be late on numerous occasions between September 1984 and February, 1987. She also failed to timely advise the school concerning her absences or tardiness on many occasions in spite of specific instructions to do so. Finally, after having received a number of oral and written directives, she nonetheless left school on several occasions for more than thirty minutes during the lunch hour without authorization. Incompetency Respondent taught a Chapter One class at PPES. This class is comprised of students needing additional training and instruction in basic skills such as reading and mathematics. It is smaller than a regular class so that the teacher may give the students added instruction and attention. Because of respondent's repeated absenteeism and tardiness over the course of the school years, the children in respondent's class were denied the continuity of their instructional program. This also meant the lesson plans could not be carried out as prepared on those days on which she was late. Therefore, the students continually received a reduced period of instruction. This in turn impaired her effectiveness as a teacher. Respondent's Case In 1982, respondent's father became gravely ill and was thereafter bedridden at her mother's home until his death in 1987. According to Williams, her mother cared for him during the day and Williams took her turn at night. She also visited him on occasion during her lunch hour. As a result, she was required to spend long waking hours during the night with her father and to overextend her lunch hour while visiting him during the day. Williams attributed her attendance problems and her falling asleep to the demands of her father. However, Williams never told her superiors of this problem nor did she obtain authorization to leave campus during lunch hour. Just prior to her separation from PPES Williams acknowledged to school officials that she had a drinking problem. She also agreed to attend a clinic for problem drinkers. At hearing she denied having such a problem and said her earlier admission was given solely for the purpose of saving her job. However, she acknowledged attending a drinking clinic for a few days in early 1987. At the school's request, she also took a physical examination in February, 1987. The results are not of record. Williams contended that other teachers were late but were not written up. However, no proof as to this contention was submitted. The Teacher Assessment and Development System (TADS) is the standard measure of teacher performance in Dade County. There was no evidence of any negative TADS evaluation of respondent despite her repeated tardiness and absences from school. Respondent's last TADS evaluation covered the period up to and including March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office, gross insubordination and incompetency as set forth in this Recommended Order and that she be dismissed as an employee of petitioner. DONE AND ORDERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1456 Petitioner: Rejected as being unnecessary. Covered in finding of fact 1. Covered in findings of fact 5, 17 and 25. Covered in findings of fact 12-15 and 25. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in findings of fact 12-19. Covered in finding of fact 9. Covered in finding of fact 3. Covered in finding of fact 25. Covered in findings of fact 25 and 27. Respondent: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Covered in finding of fact 26. Rejected as being unnecessary. Accepted to the extent the same is covered in the findings; the remainder is rejected as being contrary to the more credible and persuasive evidence. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29. Covered in finding of fact 29 Rejected as being contrary to the more credible and persuasive evidence. Rejected since respondent's deficiencies constituted incompetency. Rejected as being irrelevant. Rejected since respondent admitted knowing that the beverage was alcoholic in nature. Partially covered in finding of fact 3. Rejected as being contrary to the evidence. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Rejected since respondent admitted having a drinking problem during her conference with Dr. Gil on February 3, 1987. Rejected since the Board's basis for dismissing respondent was based on other factors. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being contrary to the more credible and persuasive evidence. COPIES FURNISHED: Frank R. Harder, Esquire Fontainebleau Park Office Plaza Suite 2A-3 175 Fontainebleau Boulevard Miami, Florida 33172 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
The Issue The issue is whether Respondent should be dismissed from his employment as a school teacher for just cause pursuant to Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Background Petitioner is the duly appointed Superintendent for HCSB. He is responsible for the administration and management of the Hernando County School District. HCSB is the governing body of the Hernando County School District. It is charged with the responsibility to operate, control, and supervise all free public schools in Hernando County, Florida. At all times material here, Respondent was, and continues to be, an employee of the HCSB as a member of the instructional staff pursuant to a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with minor students. Apart from the allegations raised in this case, Respondent has been a satisfactory employee. No employee, agent, or representative of the HCSB was aware of any allegations of inappropriate sexual conduct between Respondent and any student until law enforcement officials notified school officials about an investigation a few days before Respondent's arrest. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher. He eventually became the technology resource coordinator at Powell Middle School. Respondent served as director of an after school program (ASP) at Powell Middle School beginning in January 1995. HCSB and the local YMCA sponsored and funded the ASP until sometime in the spring of 1996. Respondent was in large part responsible for the successful creation, organization, and operation of the ASP. The ASP began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after school activities, like swimming lessons, took place on the premises of the YMCA. The ASP participants rode a school bus from the school to activities in remote locations. Respondent directed the ASP initially from his classroom in the science building of Powell Middle School and subsequently from a room used as a computer lab, which was adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the ASP were stored there. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to the cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp, in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. C.B. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. At that time, C.B. was not one of Respondent's regular students. He was a participant in the ASP. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the ASP. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. However, with help from his counselors, and encouragement from Respondent, C.B. stayed at camp for eight weeks. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the ASP. Respondent regularly drove C.B. home following the close of the ASP. Respondent worked one-on-one with C.B. to improve his grades. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B.'s grades improved markedly. Respondent encouraged C.B. to set high school graduation as a goal. C.B. testified that, during the after school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. They traveled in Respondent's pick-up truck and shared the expenses of the trip. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Respondent and C.B. paid their entrance fee and entered the theme park as soon as it opened for business. With so many people around, there was no expectation of privacy in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Families. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. C.B. attended camp at a reduced rate again in the summer of 1996. He went to Vermont early so that he could earn money working at camp before it opened. During the summer, Respondent bought C.B. a portable C.D. player, C.D.'s, and some articles of clothing with the understanding that C.B. would repay Respondent later. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996 for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead High School. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons, as he had for those of other young people. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent that weekend because he was on restrictions at home. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. After a confrontation with his parents, C.B. ran away from home. On September 21, 1996, Respondent went to C.B.'s home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor, and their son and daughter, were close friends of Respondent. The son, Sean O'Connor, was away at college. The daughter, Jennifer, still lived at home. C.B.'s parents agreed to let C.B. live with the O'Connors on a trial basis, provided that C.B. remain on restrictions within the O'Connor home for a period of time. The O'Connors did not live within the Springstead High School district. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Respondent purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his step-brother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996 was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connor residence, then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connor home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On Thursday, October 24, 1996, C.B.'s father decided that he wanted C.B. to move back home. When the father arrived at the O'Connor's home, C.B. attempted to have a heart-to-heart talk with his father. When the father insisted that C.B. return home, C.B. ran out into the yard of the O'Connor home. The father caught up with C.B. and, during the ensuing struggle, repeatedly punched C.B. in the face. The O'Connors called the police. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with the O'Connors' daughter. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with her. Because he would not go home with his stepmother, C.B. was taken to a youth shelter. He ran away from the shelter that night. C.B. continued to attend school while on run away status. On October 29, 1996 and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Families each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father's made his first court appearance, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.3 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct, involving masturbation of Respondent's penis, in Respondent's science classroom or the computer room at Powell Middle School during after school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. A.P. Respondent met A.P., a sixth grade student at Powell Middle School in 1995 as a participant in the ASP. A.P. was a very out-going person, who demanded attention. At times, Respondent, as director of ASP, had to discipline A.P. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during ASP. Respondent frequently gave A.P. a ride home after ASP. Respondent offered A.P. a scholarship to attend Camp Sangamon in the summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the ASP. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley, interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Hernando County School Board enter a Final Order finding Respondent not quilty of improper sexual conduct with C.B. and A.P., and reinstating Respondent to his teaching position, with back pay, less interim earnings, benefits, and no break in seniority of years of continuous service. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998.
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 30, 1974. (Hearing Officer's Exhibit 1). The hearing in this cause was scheduled by notice dated April 18, 1975. (Hearing Officer's Exhibits 2, 3). 3, The Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4). The United Teachers of Suwannee is an organization which is seeking to represent employees of the Public Employer concerning working conditions, including wages, hours, and terms of employment. The United Teachers of Suwannee was formed through a merger of two organizations, one of which had previously entered into a collective bargaining agreement with the Public Employer prior to the adoption of the Public Employees Relations Act. There is no contractual bar to the holding of an election in this case. (Stipulation TR 7, 8). There is no bargaining history under the Public Employees Relations Act which affects this matter. (Stipulation TR 8). Requests for recognition as the exclusive representative of persons in the unit described in the Petition, and the Public Employer's response to the requests are set out in correspondence which has been received in evidence as Joint Exhibits 1, 2, 3, and 4. Petitioner clearly requested recognition. The Public Employer did not comply with requests for meetings as promptly as requested by Petitioner; however, the request for recognition was not explicitly denied. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 5). The Public Employer contends that Petitioner is not duly registered. The PERC registration file, PERC No. 8H-OR-744-1034, was received in evidence. The Public Employer sought to present the testimony of certain PERC officials with respect to its contention; however, Petitions to Enforce Subpoenas of these individuals were denied. 9, PERC has previously determined that the Petitioner filed the requisite Showing of Interest with it's Petition. (Hearing Officer's Exhibit 4). The Public Employer sought to offer evidence that the requisite Showing of Interest had not been presented to PERC; however, no direct evidence in support of the Public Employer's position was presented. The parties agreed that the unit designation set forth in the Petition is appropriate, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the unit. Petitioner would include these persons within the unit. The Public Employer employs five guidance counselors. One guidance counselor is employed at Branford High School, one at the Vocational/Technical School, one at the Suwannee Middle School, and two at Suwannee High School. Guidance counselors are charged generally with responsibility for counseling students and assisting them in understanding the school and it's environment, in understanding themselves in relation to others, in understanding their progress in relation to their abilities and limitations, and in understanding themselves in relation to education and vocational goals. Guidance counselors assemble and interpret information about students, encourage and participate in case conferences with parents and/or teachers, participate in school standardized testing programs, and distribute occupational and vocational material to pupils. In addition to these functions, which are generally associated with the position of guidance counselor, guidance counselors employed by the Public Employer perform additional functions which are probably unique to Suwannee County. Indeed, the functions performed by guidance counselors within Suwannee County vary from school to school and from counselor to counselor. The broad range of duties performed by a guidance counselor in Suwannee County will depend to a great extent upon the personality of the individual counselor and his or her relationship with the school principal. All guidance counselors within the Suwannee County School system have Masters Degrees. It is necessary for a guidance counselor to have a casters Degree in order to be certified as a guidance counselor. Although a good number of teachers within the school system have Masters Degrees, this is not a requirement. Guidance counselors are certified in a different category than are teachers. Guidance counselors have the same base pay as teachers. A beginning guidance counselor would receive the same pay as a beginning teacher with a Masters Degree. Guidance counselors have the same contract as instructional personnel. No guidance counselors employed by the Public Employer perform instructional duties. Guidance counselors receive mail at the schools in the same manner as instructional personnel, share the teachers' lounge, and eat lunch in the school cafeteria with instructional personnel. All guidance counselors have offices. Many teachers also have offices, but all teachers do not have offices. Teachers are scheduled for five instructional work periods per day and one planning period. Guidance counselors work six periods per day without any planning period. Teachers are generally hired on a ten-month contract basis, while guidance counselors are hired on a twelve-month basis. Students frequently relate complaints with respect to their teachers to guidance counselors. The guidance counselors who testified at the hearing each handled these complaints in a different manner. Among the actions that a guidance counselor might take upon hearing a number of complaints about a teacher are to counsel with the teacher, or to inform the principal. Guidance counselors are responsible for assigning new students to classes. In making these assignments guidance counselors will consider class sizes and the personality of the teacher and the student. Guidance counselors can make an assignment despite objections of a teacher. Guidance counselors periodically meet as a group without any teachers present. These meetings might be called guidance counselor meetings, communications meetings, or policy meetings. Guidance counselors occasionally attend meetings with the superintendent and his staff and principals. Policy matters which affect the entire school system are discussed at these meetings, and decisions are made based upon these discussions. A new diploma policy was recently adopted within the school system as a result of such meetings. Guidance counselors do not have the power to hire, fire, suspend or discipline teachers or other instructional personnel. Henry Clay Hooter is the guidance counselor at the Vocational/Technical School. In addition to the duties discussed above, Mr. Hooter serves as the school's Assistant Principal. He has served as Acting Principal on several occasions. On one occasion while serving as Assistant Principal, Mr. Hooter was placed in the position of preparing the Principal's School Budget. In the absence of the principal Mr. Hooter has been called upon to sign leaves of absence for teachers. In the absence of the Principal Mr. Hooter is generally responsible for maintaining order at his school. Because he serves as Assistant Principal, Mr. Hooter has more contact with the Principal than teachers have. Lonnie Bob Hurst is one of the guidance counselors at Suwannee High School. In addition to the general duties and responsibilities set outs above, Ms. Hurst participates in preparing the master school schedule. A teacher's entire workday is set out in the master school schedule. Decisions made in preparing this schedule will determine whether a teacher will have advanced, medium, or slow courses, when the courses will be taught, when the teacher will have a free period, and when the teacher will take lunch. The master school schedule is ultimately adopted by the Principal. Both the Principal and the Assistant Principal work on the schedule along with Ms. Hurst. Ms. Hurst makes recommendations respecting courses that should be offered at Suwannee High School. Her recommendations are generally followed. The Principal at Suwannee High School frequently meets with the school's two guidance counselors and the Assistant Principal to discuss scheduling, and other policy matters. Guidance counselors at Suwannee High School play an active role in determining which courses will be offered, and which teachers will teach the courses. Oscar Munch is the guidance counselor at Branford High School. Mr. Munch acts as Assistant Principal in the absence of the Assistant Principal. Mr. Munch was previously charged with the responsibility for drafting the master schedule, but the Assistant Principal now performs this function. Ms. Virginia Alford is the guidance counselor at Suwannee Middle School. The Principal at Suwannee Middle School, Mr. John Cade, relies upon Ms. Alford to perform numerous functions beyond those generally associated with the position of guidance counselor, and the duties and responsibilities discussed generally above. Mr. Cade has delegated the responsibility for developing the master school schedule to Ms. Alford. Mr. Cade has ultimate responsibility for approving the schedule, but he generally follows the recommendations of Ms. Alford. The guidance counselor at Suwannee Middle School is responsible for assigning students to teachers. In making these assignments the guidance counselor is expected to evaluate the student and the teacher. Mr. Cade relies upon Ms. Alford in preparing his evaluations of teachers. Ms. Alford does not fill out any formal evaluation form; however, Ms. Alford's observations respecting student complaints and the teacher's utilization of student files are solicited by Mr. Cade, and are used by him in rendering evaluations of teachers. Teachers make suggestions to Mr. Cade respecting the budget. Ms. Alford actually assists Mr. Cade in preparing the budget. She attends budget meetings with him, and is expected to give advice to Mr. Cade respecting overall school needs. Mr. Cade meets very frequently, approximately two times per week with his Assistant Principal and his guidance counselor. The guidance counselor's name is on the school stationery. Mr. Cade frequently takes his guidance counselor to meetings with the Superintendent and the Superintendent's staff. Limited negotiations were conducted between the Public Employer and a labor organization which ultimately merged with the Petitioner in this case. Guidance counselors, occupational specialists, and school psychologists did not participate in these negotiations on behalf of the school board. It is now the apparent intent of the Public Employer to place such staff members as guidance counselors, occupational specialists and school psychologists on the collective bargaining negotiating team on a rotating basis. The purpose this placement would be to have the persons who will ultimately have responsibility for administering an agreement participate in the negotiations. There are two occupational specialists employed by the Public Employer. The occupational specialists are not assigned to a particular school. Occupational specialists are charged generally with placing students who are leaving the school system in positions in business and industry. The occupational specialists follow up on students after graduation. The occupational specialists answer directly to the Director of Vocational Education. They prepare their own plan of operation and have a separate budget. Occupational specialists made specific recommendations to the Superintendent regarding items in their budgets. Occupational specialists perform no instructional duties. There is no requirement that an occupational specialist have a college degree. The school psychologist is a member of the Superintendent's staff. The school psychologist answers directly to the Superintendent. He has primary responsibility for the testing and placement of students within the school district. The school psychologist plays a major role in placement of students within the school system. He has a separate office and his own secretary. The school psychologist holds a "specialist degree", which is a level above a Masters Degree. The school psychologist plays a role in formulating school policy respecting special education programs. The school psychologist has virtually total discretion in administering budgetary funds which are allocated to him. ENTERED this 25 day of November, 1975 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue Whether Respondent is guilty of "misconduct in office" as defined in Florida Administrative Code Rule 6B-4.009(3). Whether Respondent is guilty of "gross insubordination" as defined in Florida Administrative Code Rule 6B-4.009(4). Whether Respondent's actions constitute "just cause" and further constitute "good and sufficient reason" to terminate Respondent's contract of employment with the Hernando County School Board for the 2004-2005 academic year.
Findings Of Fact Petitioner is the duly appointed Superintendent of Schools in and for Hernando County, Florida. The School Board of Hernando County, Florida, is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Hernando County, Florida, pursuant to Section 1001.31, Florida Statute. Petitioner is responsible for the operation and supervision of all the public schools in Hernando County, Florida, and is further responsible for making recommendations to the School Board for the hiring and discipline of school principals. As of November 2004, Respondent was employed by the School Board of Hernando County as principal of Powell Middle School, pursuant to an annual contract for the period of July 1, 2004, to June 30, 2005. Pursuant to the annual contract and the educator's certifications issued by the Department of Education (DOE) to Respondent, he was, at all times material, subject to the rules and regulations of the Hernando County School Board and to Florida law, including Sections 1012.23 and 1012.33, Florida Statutes and Florida Administrative Code Rules 6B-1.001, 6B- 1.006, and 6B-4.009. Respondent's duties as a school principal were defined by Sections 1001.32, 1001.54, 1012.28, Florida Statutes and by the Hernando County School Board-approved job description for principals. Prior to his employment with the Hernando County School Board, Respondent was employed by the Broward County School Board from 1993 until 2002. His personnel file in evidence shows that by a letter dated June 11, 2001, Respondent was appointed "interim assistant principal" of Deerfield Beach Middle School commencing in August 2001. On or about October 17, 2001, the Broward County Superintendent of Schools presented formal charges for a finding of probable cause to the Broward County School Board against Respondent, alleging that Respondent had committed misconduct in his office as an assistant principal of Deerfield Beach Middle School on August 25, 2001, when Respondent pawned a school lap top computer. Petitioner was given an opportunity to appear and make a presentation. On November 16, 2001, the Broward County School District referred the same charges to the DOE, Bureau of Professional Practices (BPP). A school district is required by law to make such referrals to DOE but is free to proceed on its own against an educator under its own annual contract with him. It is up to DOE's BPP to determine if DOE will file DOE's independent administrative complaint for purposes of disciplining the same individual's state educator's certificate, which certificate (license) is issued by DOE. On November 16, 2001, DOE sent a letter by certified mail to Respondent at the address he had provided to DOE's BPP as his permanent address. That letter provided, in pertinent part: This is to advise you that a complaint has been filed against you with the Office of Professional Practices Services of the Department of Education, which alleges that you misused school property. This matter has been assigned to Henry Mixon, Consultant for the purpose of conducting an investigation. If founded, such allegations could lead to disciplinary action taken against your Florida Educator's Certificate. (emphasis supplied) Despite the clear wording of the foregoing letter, Morgan Thompson, a current DOE-BPP investigator for such complaints, testified that DOE-BPP considers that "action is pending" against an individual educator's certificate as soon as the certificate holder is notified that a complaint has been filed with DOE-BPP and an investigation is occurring, regardless of whether there ultimately is a finding of "probable cause" or "no probable cause," to file a formal administrative complaint by that Agency. DOE-BPP did not immediately file a formal administrative complaint against Respondent's educator's certificate concerning the pawned laptop computer. The "permanent address" Respondent had provided to both DOE-BPP and to the Broward County School Board was "1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311." As set forth hereafter in greater detail, Respondent received all correspondence from the Broward County School Board and its Superintendent regarding their actions preliminary to Broward County's administrative complaint at 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. (See Finding of Fact 26.) Between 2001 and October 2002, Respondent utilized the following address for all purposes regarding his employment with the Broward County School Board: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between 2001 and January 2003, Respondent utilized the following address for all purposes regarding DOE: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between 2001 and November 17, 2004, Respondent utilized the following address for purposes of correspondence with DOE-BPP: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between August 2001 and November 17, 2004, Respondent utilized the same address for purposes of correspondence regarding the Equal Employment Opportunity Commission (EEOC), DOE-BPP, and the Broward County School Board. Respondent did not reside at 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311, at any time between 2001 and November 8, 2005. As of the November 1-8, 2005, dates of hearing herein, Respondent still utilized the 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311, as a valid, permanent address. DOE-BPP's November 16, 2001, letter (see Finding of Fact 10), was received and signed for by one of Respondent's family members. Respondent has consistently maintained that his brother, Rueben C. Ransaw III, signed for this correspondence; that his brother is incompetent; and that his brother did not forward this particular item to Respondent. The evidence presented at hearing indicates that the brother has been incarcerated and involuntarily committed at various times, but not that he was determined legally incompetent in the time frame crucial to this issue. The School Board of Broward County proceeded formally against Respondent under its annual contract by an administrative complaint, dated January 30, 2002, alleging that he had misused institutional privileges for personal gain or advantage, in violation of Florida Administrative Code Rule 6B- 1.006(4)(c); committed immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009; and committed misconduct in office through violation of various provisions of the Code of Ethics of the Educational Profession, in violation of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). The School Board of Broward County sought to discipline Respondent with a penalty of 10 days' suspension without pay and transfer to an instructional guidance position, in the sole discretion of the Superintendent of Schools in and for Broward County, for a period of three years, after which, if Respondent completed three years of satisfactory evaluations, he would be eligible to return to an administrative position. On February 19, 2002, the Broward County School Board approved the penalty requested by its Superintendent in the administrative complaint. On March 5, 2002, Broward County received Respondent's request for a disputed-fact hearing before the Division of Administrative Hearings on the Broward County administrative complaint. Effective March 6, 2002, pending resolution of the Broward County School District's administrative complaint, Broward County's Superintendent involuntarily transferred Respondent to the position of guidance counselor at Lyons Creek Middle School. In the Broward County School District, the position of guidance counselor has fewer duties and less authority than the position of assistant principal, which position Respondent had previously held at Deerfield Beach Middle School. The paperwork suggests that the position of guidance counselor in Broward County is not even an administrative position, but an instructional one. (See Finding of Fact 22.) Thus, it is clear that Respondent's March 6, 2002, involuntary transfer included a demotion, even though his Broward County disciplinary case was still pending. On April 17, 2002, a disputed-fact hearing on Broward County School District's administrative complaint was heard by a Division of Administrative Hearings Administrative Law Judge. Respondent and a lawyer representing him participated in that evidentiary proceeding, so it is certain that Respondent knew about the Broward County School Board's actions since October 17, 2001, and knew about the prosecution of its administrative complaint against him. On May 17, 2002, before learning the result of his April 2002 disputed-fact hearing on the Broward County disciplinary case (see Finding of Fact 39), Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking employment in the position of assistant principal at Hernando County's Nature Coast Technical High School. Within his resume, Respondent reflected, under "Professional History" that he was then currently employed as an assistant principal at Deerfield Beach Middle School in Broward County, Florida. His resume specifically stated, under "Professional History" that he held that position, "March '01 to Pres." This statement was patently false. In making the foregoing finding of fact as to falsity, the undersigned has carefully considered all the evidence with regard to the issue, including but not limited to when, and under what conditions, Respondent took a voluntary leave of absence without pay from Lyons Creek Middle School on October 3, 2002 (see Finding of Fact 49), and the information that Broward County official records were not finalized until the end of the 2002-2003 school year, to reflect backwards and classify Respondent as an "involuntary transfer" and "terminated" as opposed to using the more accurate words, "demoted" and "not re-appointed." (See Finding of Fact 66.) Respondent's testimony that in applying to Hernando County he mistakenly relied on a "form resume" which was "outdated" is not persuasive that he was being honest in that resume. His testimony that he merely made an "error" as to his "work site" (showing Deerfield Beach Middle School instead of Lyons Creek Middle School) likewise is not persuasive. It is particularly noted that all of Respondent's other entries on this resume under "Professional History" are actual job titles within the Broward County School District.1/ On May 28, 2002, Respondent completed and submitted a Formal Application for Employment to the Hernando County School Board. Within his May 28, 2002, Formal Application to the Hernando County School Board, Respondent reflected that from March 2001 through March 2002, he was an assistant principal at Deerfield Beach Middle School and his then-current employment (position unspecified) was located at Lyons Creek Middle School. On his May 28, 2002, application, instead of specifying a position that he held at Lyons Creek Middle School, Respondent requested that the potential employer, Hernando County School Board, not contact Lyons Creek Middle School's principal at that time. This Formal Application also reflected that Respondent was transferred from Deerfield Beach Middle School to Lyons Creek Middle School. Respondent knew of his transfer and of his Broward County demotion to the position of guidance counselor on March 6, 2002, which was prior to his May 28, 2002, application to the Hernando County School Board. The statement made by Respondent on his May 28, 2002, application for employment to the Hernando County School Board that he was "transferred" to Lyons Creek Middle School was true, but it did not volunteer that he also was demoted to guidance counselor. Within this application to the Hernando County School Board, Respondent also certified "to the best of [his] knowledge and belief" that he had never been "not re-appointed." Because the Recommended Order in his Broward County contract disciplinary case was not entered until July 2002 (see Finding of Fact 39), and because Broward County re-appointments did not come out until August 2002, Respondent may have, at this point, legitimately believed that he had not ever been "not re- appointed." However, during Respondent's interview for the position of assistant principal at Nature Coast Technical High School, in Hernando County, Respondent held himself out as a then-current assistant principal in Broward County, Florida. The overall effect of Respondent's May 17, 2002, and May 28, 2002, materials and subsequent interview was to mislead Hernando County officials. Respondent was not recommended for appointment to the position he sought as assistant principal at Nature Coast Technical High School in Hernando County. The Administrative Law Judge entered his Recommended Order in Respondent's Broward County contract disciplinary case on July 2, 2002. Therein, he found, as fact, that Respondent had pawned a school-owned laptop computer; signed a document that represented that he owned the computer; received $350.00 for the computer in pawn; had gone to the pawn shop to redeem the computer not knowing that the Broward County School authorities or law enforcement had discovered the wrongful pawning; and that Respondent had not attempted or intended to deprive the School District of its laptop computer permanently. Citing mitigating circumstances, that Recommended Order concluded, as a matter of law, that Respondent was guilty only of misconduct in office and recommended that the School Board of Broward County enter a final order also only concluding that Respondent was guilty of misconduct in office and only imposing a 10 days' suspension without pay, but no demotion. At that point, the Broward County School Board could have accepted rejected, or modified, via its final order, the Administrative Law Judge's recommendation, but no final order has ever been entered by the Broward County School Board. Respondent remained in the demoted position of guidance counselor at Lyons Creek Middle School until October 3, 2002, when he took a leave of absence for family illness. (See Finding of Fact 49.) ` 42. Paperwork produced by Broward County in 2002 omits Respondent's name from the list of those re-appointed or re- assigned to Deerfield Beach Middle School. Respondent was not re-appointed to the position of assistant principal at Deerfield Beach Middle School in August 2002, for the beginning of the 2002-2003 school year. In August 2002, Respondent knew that he had not been reappointed to that position. In August 2002, Respondent also knew that he was beginning the 2002-2003 school year as a guidance counselor at Lyons Creek Middle School. On September 4, 2002, Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking the position of assistant principal at Pine Grove Elementary School. Within this resume, Respondent reflected under "Professional History" that from "March '02 to Present" his employment with the Broward County School District was that of "Guidance/Administrative Support" at Lyons Creek Middle School, and that he was "Interim Assistant Principal" of Deerfield Beach Middle School from "March '01 to Feb. '02." On September 4, 2002, the Broward County School District did not, and it does not now, have a position titled "Guidance/Administrative Support," and on September 4, 2002, Respondent knew he was not employed in such a position. (See Finding of Fact 44.) Moreover, his dates for "Interim Assistant Principal" of Deerfield Beach Middle School" remained problematic for the reasons set out in Findings of Fact 27-28. Respondent's testimony that his first application (see Findings of Fact 27-32) could have remained on file in Hernando County for a year; that no one requested that he amend it; and that he amended his first application voluntarily on September 4, 2002, is accepted. However, the statements in his "voluntarily amended" resume continued to be intentionally false and misleading to the extent that he was "padding" his purely instructional guidance counselor position with administrative experience. In making the foregoing finding of fact as to false and misleading statements in the September 4, 2002 resume, Respondent's explanation that Broward County had appointed and paid him as an assistant principal in February 2001 to begin taking three years of "Interim Assistant Principal" classes, on how to be an assistant principal and to create a portfolio at the end of the three years has been considered. However, Respondent's explanation that he thought he had amended his resume to show his current employment work site (Lyons Creek Middle School) and to show his professional history, prior responsibilities, and prior functions, and not to provide his job titles, is not credible because all his other entries under "Professional History" are job titles and because classes to transition into an assistant principalship are not the same as being an assistant principal. At all times during the interview process for the position of assistant principal of Pine Grove Elementary School, Respondent represented to Hernando County that he was either an assistant principal or an interim assistant principal (filling- in for a permanent assistant principal) in Broward County, Florida. On or about September 23, 2002, Respondent sought a leave of absence from his position as guidance counselor at Lyons Creek Middle School in Broward County, effective October 3, 2002, for the whole remainder of the 2002-2003 school year, to care for his mother, whom he alleged was ill. Broward County granted this leave, effective October 3, 2002. Respondent also sought, and received, permission to be employed outside the Broward County School District. On October 7, 2002, unaware of the factual misrepresentations made by Respondent within his resume of May 17, 2002, his application of May 28, 2002, and his resume of September 4, 2002, the Hernando County School Board hired Respondent for the position of assistant principal at Pine Grove Elementary School. On October 10, 2002, Respondent completed and submitted the required Hernando County School Board Security Background Check document. On this document, he was asked, "Have you ever had a teaching certificate revoked, suspended, or denied? If yes, in what state and when?" Respondent answered "No." Also on this document, Respondent was asked "Have you ever had sanctions placed on your teaching certificate for any reason?" He answered "No." Also on this Security Background Check document, Respondent was asked the question, "Is disciplinary action currently pending anywhere against your teaching certificate?" He answered "No." Respondent then signed beneath the form's statement that: "By signing this document, I certify that I have carefully read and fully understand each question and all information contained herein is true and accurate and includes no falsifications, omissions, or misrepresentations of the information requested." While employed in Hernando County between 2002-2005 Respondent used several local addresses, all of which were his legitimate residences. On or about October 25, 2002, Respondent was engaged with the EEOC in challenging his Broward County "demotion" on grounds of racial discrimination, using his Ft. Lauderdale address. (See Finding of Fact 18.) Respondent's EEOC charge (complaint) reflects that Respondent represented to the EEOC that the Broward County School Board had "given no valid reason for its actions" in demoting him. Respondent testified that he intended to use the EEOC complaint to force the Broward County School Board into entering its final order so as to adopt the Administrative Law Judge's July 2, 2002, Recommended Order in Broward County's disciplinary action against him, and that he later dropped the EEOC action. Respondent is not charged here with any falsehoods to the EEOC. Indeed, Respondent's choice of words on his EEOC complaint that no "valid" reason had been given him by the Broward County School Board is, at worst, ambiguous. However, his EEOC complaint and testimony otherwise clearly demonstrate that Respondent knew on October 25, 2002, that he had already been demoted in Broward County and that no final order had been entered by the Broward County School Board altering that demotion. On January 21, 2003, Respondent submitted his application for certification in an additional subject matter area to the Hernando County School Board for forwarding to DOE. Within this application, under the heading "29. REVOCATION," Respondent was asked the question, Have you ever had a teaching certificate revoked, suspended, or denied by any state, or is there any action pending against your certificate or application?" (A determination of academic ineligibility is not considered a denial of a certificate.) If YES, "you must give the state, reason, and year in which your certificate was revoked, suspended, denied or in which action is pending against your certificate or application. (boldface in original; underlining supplied for emphasis) Respondent answered, "No," to the foregoing question. Petitioner signed this application for certification stating, "I further certify that all information pertaining to this application is true, correct, and complete." The address Respondent used on this application was located in Hernando County. He received his additional certificate from DOE's Certifications Section in 2003 at that Hernando County address. Both the Hernando County School Board Security Background Check document and the DOE Application for Florida Educator's Certificate warned the applicant of severe consequences should the information contained therein be untruthful. However, the first of the warnings on the Background Check document addresses only failure to make full disclosure of prior criminal offenses. On January 16, 2003, Respondent submitted to the Hernando County School Board a Letter of Interest and Resume, seeking the position of principal of Powell Middle School. This time, his resume reflected under "Professional History" that "3/02 to 9/02" Respondent was "Administrative Support/Guidance" at Lyons Creek Middle School and "2/01 to 3/02" was "Interim Assistant Principal" at Deerfield Beach Middle School, both positions in Broward County, Florida. The Broward County School Board did not then, and does not now, have a position titled Administrative Support/Guidance." Respondent's January 16, 2003, resume and application are false and/or misleading for all the reasons previously cited in Finding of Fact 46. On or about April 29, 2003, the Broward County School Board terminated Respondent, due to his failure to advise Lyons Creek Middle School and the Board of his intentions about returning to Lyons Creek Middle School for the 2003-2004 school year. At that point, Respondent was officially classified in Broward County School Board records as "involuntarily transferred" and "terminated." He certainly was not reappointed as a guidance counselor. On July 1, 2003, unaware of Respondent's misrepresentations, and based on Petitioner Superintendent's recommendation, the Hernando County School Board appointed Respondent to the position of principal of Powell Middle School. On May 20, 2004, DOE-BPP sent a letter to Respondent at his permanent address on file with DOE-BPP: 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311. The certified mail receipt was signed for by Respondent's mother. This letter was similar to DOE-BPP's letter of November 16, 2001, (see Finding of Fact 10). It stated: This is to advise you that a complaint has been filed with the Department of Education, Office of Professional Practices Services, alleging that you misused school property. The circumstances leading to the complaint are being investigated by our office. If founded, these allegations could subject you to disciplinary action by the Education Practices Commission as described by Section 1012.79, Florida Statutes, copy enclosed. You are not required to respond at this time; however, in accordance with Sections 120.60(6) and 1012.796, Florida Statutes, you are provided with an opportunity to submit documents or statements which refute, explain or mitigate the allegations of misconduct listed above. You or your representative may present written materials to become a part of the record which will be reviewed by the Commissioner of Education. You may present these materials in person or through the mail. An informal conference has been scheduled for you with the Office of Professional Practices Services consultant assigned to your case on Thursday, June 10, 2004 at 10:45 a.m. If you wish to attend the conference in person or mail materials, the address is Turlington Building, Suite 224-E, Tallahassee, Florida 32399. If you wish to conduct the conference by telephone, the number is (850)245-0438. (emphasis supplied) Respondent's mother forwarded DOE's May 20, 2004, letter to him. Respondent received the May 20, 2004, DOE materials. He personally responded to DOE on June 3, 2004. For purposes of his response to DOE, Respondent utilized his permanent address of 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311, instead of his then-current Hernando County residence, and acknowledged his receipt of the May 20, 2004, correspondence from DOE. The content of Respondent's reply to DOE clearly demonstrates his familiarity with all stages of Broward County's correspondence with, and prosecution of, Respondent in 2001-2002. (See Findings of Fact 23, 26.) On October 25, 2004, DOE filed its formal administrative complaint, based on the pawned laptop computer, against Respondent's educational certificate, and sent the administrative complaint, written notice that probable cause for the complaint had been found, and an election of rights form to Respondent at his permanent Ft. Lauderdale address that Respondent had used for his June 3, 2004, response to DOE. (See Finding of Fact 69.) Because of the laptop pawning, DOE's administrative complaint charged Respondent with gross immorality or an act involving moral turpitude pursuant to Section 1012.795(1)(c), Florida Statutes; with violation of the Principles of Professional Conduct for the Education Profession, pursuant to Section 1012.795(1)(i), Florida Statutes; and with use of institutional privileges for personal gain or advantage, pursuant to Florida Administrative Code Rule 6B-1.006(4)(c). On November 6, 2004, DOE's administrative complaint, written notice, and election of rights form were delivered by certified mail and signed for by a family member of Respondent at the Ft. Lauderdale address Respondent had used in his June 3, 2004, response to DOE. On November 16, 2004, the Hernando County School Board received from DOE a copy of DOE's October 25, 2004, letter, notifying Respondent of the filing of DOE's administrative complaint against Respondent. The actual administrative complaint and other documents were not enclosed. At no time had Respondent advised the Hernando County Superintendent that he was being investigated by DOE. When asked, on November 16, 2004, to explain what was going on, Respondent told Petitioner Superintendent that he knew nothing about any investigation by DOE. He told the Hernando County School Board's Human Resources Officer that he had received no election of rights form. He also told her that he did not know that Broward County had not submitted a final order in the case it had brought against him in 2002. The Superintendent asked Respondent to give her a written statement. On November 17, 2004, Respondent wrote the Superintendent in pertinent part, as follows: * * * Please be advised that I am not aware of any investigation conducted by the Commissioner or the Office of Professional Practices. Also be advised that I never took part nor was I ever involved in any dialogue with the Commissioner or the Office of Professional Practices regarding this recent finding of probable cause. As a point of information I was not informed of any complaint filed against me by Broward County Public School or anyone until this year. This recent notification is approximately three years after an isolated incident that occurred in Broward County, Florida, which resulted in an formal hearing with the Department [sic.] of Administrative Hearings. As a result of the hearing the appropriate disciplinary action was recommended by the Administrative Law Judge for my offense. * * * Respondent's theory of the instant case, and at least some of his frequently vacillating testimony, was to the effect that he had not received the November 6, 2004, package from DOE, containing DOE-BPP's October 25, 2004, administrative complaint and election of rights form, at his residence in Hernando County by November 16, 2004, when he spoke with the Superintendent and Human Resources Officer, and still had not received the DOE package by November 17, 2004, when he wrote his statement for the Superintendent, and therefore, his statements as related in Findings of Fact 73-74, were not false. By way of further explanation, Respondent contended that without interrogating him, DOE could not be "dialoguing" or "investigating" charges against him. To the contrary, it is found that Respondent's November 16-17, 2004, oral and written representations to Hernando County representatives were largely false, and were made knowing they were false, as evidenced by Respondent's need to redefine "dialogue" and "investigation" in his own terms, in order to defend his written statement. Giving Respondent the benefit of the doubt, some parts of Respondent's November 17, 2004, written statement are ambiguous,2/ but clearly, Respondent was, prior to November 16, 2004, aware that DOE-BPP was currently investigating him (see Findings of Fact 68-69) and denied it to the Superintendent. Likewise, he clearly knew that no final order had been entered by Broward County in its disciplinary action against him (see Findings of Fact 56-57), and denied that to the Human Resources Officer. Therefore, his November 16-17, 2004, statements to the Superintendent, with the exception of the statements that he had not yet received DOE's formal administrative complaint, finding of probable cause, and election of rights form, were false. It is noted also that Respondent had only failed to receive these items because they were sent to the permanent address Respondent, himself, had used for correspondence with DOE about its disciplinary investigation of him. At a meeting of Petitioner, the Superintendent, and the Human Resources Officer on November 19, 2004, Respondent again denied any knowledge of the DOE investigation, despite having been given three separate direct orders November 16-19, 2004, by the Superintendent to be truthful with her. That day, Petitioner provided Respondent with an Employee Conference Report notifying him of charges against him by the Hernando County School Board. Respondent has stated some complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding. On November 22, 2004, Respondent was suspended with pay, pending investigation of Hernando County School Board's charges against him. Respondent has stated some procedural complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding. On November 30, 2004, and again on December 2, 2004, Petitioner Superintendent requested that Respondent return all items of Hernando County School Board equipment in his possession to the Hernando County School Board. At the time of Respondent's suspension with pay on November 22, 2004, Respondent was in possession of the following items of Hernando County School Board-owned equipment: two laptop computers; two palm pilots; one facsimile (FAX) machine; one laser printer; two cellular phones; one school walkie- talkie/radio; and one portable stereo/cassette player. Respondent's explanation for why he had so many pieces of equipment was that he and his family had begun to have concerns for his safety if he worked at Powell Middle School late into the evening, so he had begun to work more at home than at school in his off-hours. He claimed to be working on his portfolio and school matters, consulting advisors and mentors, and recruiting teachers. Other principals and educators testified more credibly that they could not conceive of any reason a principal would require that much equipment, much of it duplicative, to do School Board-related work at home. In the Hernando County School District, school principals are normally issued, for take-home usage, only the following items of equipment owned by the Hernando County School District: one cellular telephone; one laptop computer (if requested), and one palm pilot (if requested). Respondent had been issued one of each of these three types of equipment. On December 2, 2004, Respondent returned all the Hernando County School Board equipment in his possession. Respondent had two laptop computers in his possession because a new one had become available to him; Respondent had asked the Powell Middle School technology coordinator to transfer all files in the "my documents" folder from Respondent's old laptop to the new laptop; and Respondent had told the technology coordinator that Respondent wanted to transfer his "confidential" folder himself, and to leave those confidential files alone. The technology coordinator copied the files requested from the old laptop computer to the new laptop computer and gave both laptops to Respondent to check. Checking the transfer should have taken Respondent about two hours, but Respondent retained both laptop computers in excess of three months, despite the technology coordinator's occasional requests for the return of the old laptop computer for recycling. At the hearing in this cause, Respondent admitted that on December 1, 2004, the evening immediately prior to his return of the foregoing Hernando County School Board-owned equipment to the District, he had deleted all files from the two laptop computers owned by the Hernando County School Board. He represented that the same material had existed on his office desktop computer at Powell Middle School when he turned in the two laptop computers, and if it were no longer on the desktop computer, the material (School Board documents) had been compromised by someone other than himself. However, in December 2004, immediately after Respondent returned the two laptop computers, computer technicians for the School Board had determined that no files were deleted from Respondent's desk top computer and none were transferred to the desktop computer on or about December 1, 2004. At that time, only about 12 files existed on the principal's office desk top computer which coordinated, even by their file names, with the deleted material on the two returned laptops. There exists no method or mechanism by which the data deleted by Respondent from the two laptop computers owned by the Hernando County School Board can be recreated or restored from the machines. Knowing a file name does not equate with determining the contents of the file, itself. At the disputed-fact hearing in the instant case, Respondent offered no explanation or justification for his deletion of data from the two laptop computers. Indeed, he specifically denied that he had deleted only "personal files." He testified that he had downloaded all the material from each laptop onto floppy disks and had produced at the hearing all that material in hard copy for each respective machine. (Exhibits R-4A and R-4B). Respondent's testimony further revealed that he had kept the knowledge of the existence of any floppy disks secret from the Superintendent and School Board from December 2, 2004, until approximately 10 months later, when he produced six floppy disks, pursuant to a discovery order in the instant case. At that time, a School Board computer technician determined that the hard copies which were eventually admitted as Respondent's Exhibits R-4A and R-4B, had been printed on September 8, 2005, well after December 2, 2004, when Respondent had relinquished the laptops. The computer technician further determined that all the files, at least by file name, from both laptops were not on the six floppy disks produced by the Respondent. A computer technician also testified competently and credibly that for each item printed from the six floppy disks produced by Respondent and represented by Respondent as the floppy disks he had used to store the entire contents of both laptops on December 1, 2004, the "created" date was September 8, 2005; that this "created date" demonstrated that the disks produced by Respondent were copied from another source on September 8, 2005; and that therefore, the floppy disks produced by Respondent during discovery were not copied from the laptops on December 1, 2004, as Respondent had represented. When he was reminded of the foregoing technical testimony, Respondent then testified that he had supplied in discovery to the School Board and its technicians only copies of his original floppy disks, which "floppy copies" were created by him on September 8, 2005, during discovery, and that the hard copy material also had been printed on September 8, 2005, from the copies of the September 8, 2005, "floppy copies." Therefore, the undersigned infers from the evidence as a whole, that on December 1, 2004, Respondent anticipated being charged by the Superintendent with personal use of the School Board's two laptop computers and that Respondent therefore deleted all the material from both laptops in order to remove any "confidential" and personal material (see Finding of Fact 85), with the intent to not provide the Superintendent with any self-incriminating evidence of his personal use of the laptop computers. A review by the undersigned of the hard copy material presented by Respondent (Exhibits R-4A and R-4B) reveals that the material in each exhibit is identical and that each may be considered school-related material. However, none of the hard copy material produced by Respondent is clearly material protected by Chapter 119, Florida Statutes. The Hernando County School Board has duly adopted Board Policy 8.60, which provides in pertinent part: Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized. E-mail, world wide web pages, and other forms of electronic documentation. * * * (b) Will require the same handling as other public records. * * * (5) Users shall not take unauthorized actions which . . . deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems. By deleting all data from the two laptop computers owned by the Hernando County School Board, Respondent deleted electronic data located on Hernando County School Board computers. The material he has produced is related to school matters. Giving Respondent the benefit of the doubt that the items he produced are, in fact, at least most of the contents of the two laptops, then he intentionally denied the school authorities access to these records from December 2004 forward, as well as eliminated his personal work from the laptop computers. When Respondent returned the two School Board palm pilots on December 2, 2004, they had no data memory chips. These palm pilots can also store data without memory chips. All that memory was also blank when Respondent returned the palm pilots to the District. Although Respondent's former office assistant/secretary also testified that she had regularly "hot- sync-ed" material from Respondent's palm pilot to his desktop computer, no palm pilot content (calendars and material related to student schedules) could be found on Respondent's desktop computer. However, the same material on the palm pilots probably could be found in other locations. Respondent had no clear explanation for what became of the memory chips from either palm pilot, but maintained he had not removed the chips or erased the other memory. There is no persuasive evidence that he erased or removed memory from the palm pilots. Credible testimony by other educators was that all the material any principal needed could be contained on one palm pilot, so Respondent's having two working palm pilots was clearly excessive and unnecessary for Respondent's job performance. The Hernando County School Board has duly adopted Policy 7.72 to deal with acquisition, use, and exchange of school property. It provides as follows: Acquisition All property purchased with District funds, internal funds, or funds received from outside sources shall be acquired using District purchasing procedures. All property, including vehicular equipment, shall be under the full control and name of the School Board. All property with a value consistent with the provisions of the policy manual, acquired through internal accounts or donation, shall be reported immediately by the principal or work site supervisor to the designated property records office on the prescribed forms. Principals and work site supervisor shall be responsible for determining that all property is identified and accounted. Exchange Each principal and work site supervisor shall determine the property needs for his/her school or department. The principal or department head shall declare any property which is not needed, upon approval of the designated property control office, and may requisition additional property through proper procedures. Surplus property shall be reported on proper forms to the designated Property Records Office which shall be responsible for acquiring and storing the surplus property. Property item with a value as established in (1)(c) above may be exchanged between and [sic.] District departments when when approval is granted by the designated Property Records Office and subsequently by the appropriate department head. Notification of each approval shall be filed in writing with the designated Property Records Office to adjust property records of schools and departments. School Board equipment may be used by employees away from School Board property under certain conditions when prior approval is obtained from the principal or department head. These conditions include familiarization with the equipment for instructional purposes or improvement of job performance. School Board equipment shall not be used for gainful outside employment or private use of employees for personal gain, or by any outside group or organization. The foregoing policy requires only that the principal account for all property in his/her school. It probably works well where a principal is overseeing administrative and instructional staff, but it contains no clear oversight or accountability for equipment checked out by principals themselves. It is also less than specific as to how a record is to be kept or what "forms" are necessary for items that are taken off-campus. For instance, the policy does not, contrary to some testimony herein, specifically require the use of a "loan of district equipment form" (Petitioner's Exhibit 40, herein), for home use. That is, the policy does not specifically mandate the use of Petitioner's Exhibit 40, which Respondent admittedly did not use, and the form itself makes no reference to Policy 7.72. Since 1997, the Athena system has been the automated computer system used at Powell Middle School to account for property (equipment, books, software, and audiovisual materials). The system is used the same way district-wide. It is based on signing out property to a particular room number within the school itself. Since instructional and administrative personnel are assigned to specific rooms, it is assumed that the computer system knows that people, not rooms, have custody of the assigned equipment and that people are mobile. Respondent appropriately used the Athena system to check out two laptops, a FAX machine, his issued palm pilot, his issued cell phone, the principal's office's cell phone, and the principal's office's walkie talkie/radio. Additionally, an assistant principal confirmed that Respondent had borrowed his palm pilot with his permission, but it remained properly checked out in the Athena system to that assistant principal's room/office. A more accurate procedure would have been to check it out through Athena to Respondent's office, but the second palm pilot was accounted-for and the assistant principal was accountable for it. A stereo/cassette player assigned to a music teacher's room by the Athena system was loaned by the music teacher to Respondent about a week before December 2, 2004, in much the same way as the assistant principal's palm pilot had been. The stereo/cassette player also probably should have been transferred in the Athena system to Respondent's office, but the item was accounted-for and the music teacher was accountable for it. A FAX machine assigned to Respondent's office by the Athena system became obsolete for use as a FAX machine, in that location, when Powell Middle School's phone lines were changed. Although the FAX machine could still be used in the principal's office and in other locations as a printer, Respondent wanted a FAX to use at home; so, Respondent, with the agreement of the school's technology coordinator, took the FAX machine home to work with as a FAX, and it remained on the Athena system as assigned to Respondent's office. A used laser printer, which had been donated to Powell Middle School, had not yet been assessed by the school's technology coordinator to determine whether it could/should be used at Powell Middle School or re-cycled through the School District. Respondent had asked to use it, and the technology coordinator gave it to Respondent to try out. The laser printer worked, and Respondent kept it for home use. Through inadvertence, the technology coordinator never got around to registering it in the Athena system as assigned to Respondent's office. The Hernando County School Board's duly-promulgated Policy 8.61, regarding telephones is as follows: In order to promote efficiency and economy, the Superintendent or designee shall develop a uniform system for implementing effective telephone service systems, including use of telephone lines to support technology. School personnel shall be informed of this system. The system shall encourage use of SUNCOM networks or equivalent services. Logs shall be maintained of long distance calls by work location. Logs shall be in a uniform format. Staff shall not utilize the School Board telephone system for conducting personal business. Telephone service billings and long distance logs shall be subject to periodic review and audit. No person shall charge personal calls to the School Board. Prior to his return of all items to the District on December 2, 2004, Respondent had in his possession, off-site from School Board property, both the cell phone issued to him and the Powell Middle School Office cell phone, as well as the Powell Middle School walkie-talkie/radio. Principals in the Hernando County School District are required to have their School Board-issued cell phones with them 24 hours a day, seven days per week. However, there was also credible testimony from other educators that if Respondent were, indeed, working at home nights and weekends, he could be reached via his home land line phone in an emergency and that he therefore did not need a cell phone then, despite the requirement that he have a cell phone with him at all times. Respondent claimed to have two cell phones because his issued phone had been damaged approximately August 2, 2004, when Shamu, the SeaWorld whale, splashed him during an administrators' field trip, and he had to use the office emergency phone while he was awaiting a new one being provided to him by the School Board. Contrariwise, a witness testified that Respondent had handed-off his issued cell phone before the Shamu incident so that it would not get wet or damaged. Because Respondent made phone calls on both phones on the same days during the period of time he had them both, it is more credible that he did not have any legitimate need of the office phone at least part of the time he had it in his possession off-campus. Tracking of Respondent's phone calls shows that he made numerous phone calls to his parents, friends, and acquaintances on both phones, but because all these people are current or former educators, mentors, or school program advisors, it is impossible to say Respondent's phone calls were purely for personal reasons or gain. Further giving Respondent the benefit of the doubt and assuming that his issued cell phone was, in fact, damaged at some point in time, and that the office cell phone had been used in the past by an assistant principal for up to five weeks, as testified-to by Respondent and that assistant principal, and that the office cell phone had been used by other educators when their cell phones also had been damaged, as testified-to by Respondent, Respondent still should have gotten his issued cell phone fixed and not deprived Powell Middle School of a necessary piece of equipment (the office cell phone) for as long as he did. Respondent's testimony that he ultimately changed out the good SIM card from the office phone to his bad cell phone does not modify the foregoing finding. Because the office cell phone was rendered inoperable by the removal of the SIM card, it was still not available for use in the school office, due to Respondent's actions. All testimony that other cell phones and radios were available elsewhere on campus and that occasionally the principal's office cell phone had to be used by instructional and administrative personnel when their own issued cell phones were not working is accepted. However, the office cell phone is a vital piece of equipment and is intended for fire drills, bomb threats, athletic events, away field trips, and emergency management situations. One can also assume that in its drawer in the principal's office, it may be the only lifeline a school has in a hostage or terrorist situation. Respondent's deprivation of the office of this item for an extended period of time during school hours was inappropriate. All testimony that occasionally all educators in the school who use a walkie-talkie/radio inadvertently walk off campus with one attached to their belts is accepted as valid, as is Respondent's testimony that this was why he had the radio on December 2, 2004, and that the radio would be no good for personal use because it is ineffective more than a mile from the campus. That said, Respondent's simultaneous retention of both the office cell phone and the walkie-talkie/radio created a potentially dangerous situation at the school by depriving office personnel of these backup items. On January 10, 2005, Petitioner recommended to the Hernando County School Board that Respondent's employment with the Hernando County School Board be terminated and provided Respondent with specific and detailed notice of all charges against him. Respondent has stated some complaints about the specificity and detail of these charges, which are not material to the instant proceeding. Respondent had full and complete notice of all charges in the instant case prior to hearing via the Amended Administrative Complaint herein. Respondent knew or should have known the Code of Ethics of the Education Profession in Florida, codified in Florida Administrative Code Rule 6B-1.001. Respondent knew or should have known the Principles of Professional Conduct for the Education Profession in Florida as codified in Florida Administrative Code Rule 6B-1.006. Respondent knew or should have known the content of all Hernando County School Board Policies. Respondent knew or should have known the established procedures to remove equipment from School Board property. Hernando County School Board Policy 6.301 provides as follows: All School Board employees, because of their responsibility as role models to the children of the Hernando County community, shall be held to a high moral and ethical standard of conduct, both in their everyday employment and in their roles within the community. All employees shall familiarize themselves with the "Code of Ethics of the Education Profession in Florida," located in the State Board of Education Rules. All employees shall abide by the Code at all times, and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Complaint Policy. If the provisions of this policy are found to be inconsistent with the clear language of any employee collective bargaining agreement, the terms of the collective bargaining agreement shall prevail. Three principals and five district administrators, all of whom are former principals or assistant principals, testified competently and credibly that in the event the charges herein are proven against Respondent he could not be effective in the Hernando County School System. To the extent that any of these individuals' testimony was couched in terms of ineffectiveness arising from mere accusations, newspaper coverage, and/or the filing of an administrative complaint, it has been discounted. Moreover, it is noted that as of August 24, 2005, Respondent was appointed to the Hernando County Ordinance Review Board, to review County ordinances and make recommendations for or against their repeal. This appointment suggests that the citizens of Hernando County are interested only in Respondent's guilt or innocence and will not judge him ineffective merely upon accusations.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Hernando County enter a final order concluding that Respondent is not guilty of the charges in paragraphs 38 c), d), e), and f) and is guilty of the charges contained in paragraphs 38 a), b), g), and h) of the Amended Administrative Complaint and approving the Superintendent's recommendation to terminate Respondent's 2004- 2005 contract. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2006.
The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 27th day of June, 2000.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
