The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be dismissed from employment in the Broward County School System for alleged violations of Section 231.36(6), Florida Statutes, as set forth in Petition for Dismissal, dated April 12, 1979. During the course of the hearing, Petitioner withdrew Paragraphs II B, E, and J of its Petition for Dismissal.
Findings Of Fact Respondent has been employed by Petitioner in the Broward County School System as an instructor in art at Plantation High School since 1970. He is currently on continuing contract status. The course which he has taught in the past include design, drawing, craft, sculpture, and ceramics. (Testimony of Respondent) During 1971, Respondent made a practice of having his students fill out a form questionnaire which contained personal information such as name, address, telephone, and date of birth. Additionally, the form included blocks concerning the student's grades, and prospective college attendance. It also asked if the student had any "hang ups" or police record, and if the student liked "rapp sessions" and why. School policy which was disseminated to teachers at faculty meetings required that any such forms had to be approved by the school principal, but Respondent had not sought such approval. When the matter came to the attention of the principal, he informed Respondent that he should discontinue use of the form and Respondent complied. (Testimony of Hanes, Saur, Petitioner's Exhibit 1) In the fall of 1971, Jill Saur, n'ee Alexander, was a student in Respondent's ceramic and pottery class during her senior year. In October and November, 1971, she complained to school officials that she had received several early morning telephone calls from Respondent concerning his desire to come to her house and have sexual intercourse with her. These calls involved Respondent's use of obscene terms and caused the student to become apprehensive and frightened. Although she had recognized Respondent's voice over the telephone, school officials were unable to identify the caller from tape recordings that she had made of the calls at their suggestion. She testified at the hearing that she was too frightened to prefer charges against Respondent. She confronted Respondent on one occasion at the high school, but he denied making the calls. Although the school conducted an investigation, no official action was taken except that the principal told Respondent to leave the students alone. (Testimony of Saur, Tankovich, Hanes) During the 1974-75 school year, Respondent asked a 13 year old ninth grade student, Darlene Wilcox, to stay after class and come into his office. He asked the student to sit down and then closed the door. He handed her an issue of the magazine "Psychology," opened it to an article which had the word "sex" in the title and asked her if she had ever read a magazine like that before. Although the student testified that Respondent locked the office door from within the room, the only way in which the door can be locked is by a key on the outside entrance to the room. There is a large inside window to the office from which persons in an adjoining classroom can observe activities within the office. After showing the article to the student, another student entered the adjoining classroom and Respondent left the office and told the girl that he would see her in class the next day. (Testimony of Wilcox, Van Vleet, Respondent's Exhibit 1) In the fall of 1977, Kathy Weber, a 17 year old 12th grade student, was at a local establishment called the "Crown Bar" with student friends one evening. Although she was not one of Respondent's students, he joined her group at the bar and commenced conversing with her. During the course of the conversation, Respondent took the girl's wrist, stated that he could read her mind, and proceeded to tell her her birth date. On one occasion thereafter, Respondent phoned Kathy at her home, but she declined to converse with him. Also, he later saw her at school and told her that if she went to the Crown Bar again he would meet her there. He also asked her to go "bumming" with him sometime which he explained meant that he would like to go shopping with her. In late November or early December, he entered a class taught by Linda Whealin during a class session which was attended by Kathy. He asked permission from Mrs. Whealin to excuse Kathy when she finished her work in order that she could help in the office. The teacher agreed, but Kathy did not go because she was afraid of Respondent and felt that he took a "too personal attitude" toward her. This incident came to the attention of the school principal who, together with the assistant principal, discussed the matter with Respondent in early December. During these discussions, Respondent stated that he could read minds, that he did call Kathy at her house because she wanted to talk to him, and that he had asked for her to be excused from Mrs. Whealin's class because he wanted her to help him inventory a large art order. The school officials warned Respondent concerning his conduct and advised him to restrict any student contact to classroom situations. The matter was summarized in a memorandum prepared by the assistant principal, dated December 5, 1977, and Respondent signed the document acknowledging that he had read it. He also submitted a rebuttal stating his version of the circumstances involving the student. (Testimony of Weber, Whealin, Hanes, Laughton, Respondent, Petitioner's Exhibit 3) Susan Clement was a student of Respondent during the, 1977-78 school year. On different occasions, Respondent grabbed her neck with his hands, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Once he told her that there were rumors that she was going to bars and meeting male teachers there. After one of these incidents, she complained to the school principal about Respondent's actions. During her school attendance, she smoked marijuana approximately three times a week and sometimes was under the influence of marijuana while attending classes. She testified, however, that it did not affect her memory or ability to concentrate in art class. (Testimony of Clement) Sherry Larkin was a student of Respondent during the past two years. During her ninth grade, he complained to her mother that Sherry was wearing thin shirts to class which disrupted the other students. Her mother, another teacher at Plantation High School, told her not to wear "Indian" clothes or jeans to school in the future. The student had been observed by another art teacher wearing sheer blouses at school. (Testimony of Larkin, Van Vleet) During the past school year, Respondent, while talking in class to a student, Lori Evans, pinched her above the breast for no apparent reason. At other times he pinched her on the buttocks during class, and slapped her on the buttocks with a ruler without giving any reasons for his actions. Lori also saw him slap another student, Angela Lash, with a ruler in the same manner. (Testimony of Evans) During the past school year, Respondent asked to see a student, Theresa Jackson, after class because she had become upset with his comments concerning her art work. After class, he told her that he wanted to embarrass her because he didn't want other students to know that he favored her or gave her special attention. He told her she was the most beautiful student he had ever had and put his arm around her. He also inquired as to her job and family and told her that if she ever had any problems, he would be glad to talk to her and help her out if she was "up tight." In one instance during the school year, the student wore shorts to class and Respondent told her that he didn't care if she wore them, but that the boy sitting at her table might get excited. On another occasion, he told her she should not wear so much eye makeup because her eyes were pretty enough without it. The student dropped the art class at the end of the first semester because she feared going back to his class since he treated her "special." (Testimony of Jackson) Tammy DeCarlo was a senior at Plantation High School during the 1978- 79 school year, but not one of Respondent's students. In February, 1979, while Tammy was loudly conversing with another student in a school corridor, Respondent came up and joined the conversation. Tammy was the school yearbook editor and had been having problems in its publication. About a week later, she saw Respondent again at school and they discussed some of her problems with the yearbook. Several days later, another student told Tammy that Respondent wanted to see her. Tammy went to his room and he asked her to go to his office. On the way, he picked up a tissue paper flower and gave it to her. In the office, they discussed her yearbook deadline and he mentioned that he had "ESP." He gave her several examples of his ability in this regard. He told her not to tell anyone that he was talking to her in order that they would have a "better trust." Tammy later told her mother about her conversation and thereafter spoke to the assistant principal about Respondent. However, nothing materialized from this discussion. A few days later, Tammy received a note telling her that Respondent wanted to see her again. Again, he took her into his office. During their conversation, Respondent told her that she didn't trust him because she had been hurt by a boy friend. He told her to close her eyes and concentrate, and then told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she didn't want to do. Tammy told him she didn't know what he was talking about and Respondent said "What is it, oral sex?" Respondent also asked her what kind of birth control she used and the student told him. He asked her to give him "something personal." Since she was afraid of him, she offered to let him have her necklace. He asked to take it off her neck and did so. A week or so later, she saw Respondent again and he asked her to come in to see him during her lunch hour but she declined. Later, she asked a friend to get her necklace back from Respondent. He returned it, together with a picture. During their initial conversation, Respondent referred to Tammy's journalism instructor as a "male chauvinist pig" when Tammy complained that the instructor was taking all the credit for publication of the yearbook. Tammy's parents made a written complaint to school authorities concerning Respondent's conduct. (Testimony of DeCarlo, Hanes) Several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. They considered him to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. Other students testified that he often placed his arm around the shoulders of various students. Respondent's ability as an art instructor has never been questioned and one of his colleagues considers him to be the best ceramics instructor in the county. During the period 1971-1979, Respondent's principal at Plantation High School warned him concerning various incidents involving female students approximately four or five times. (Testimony of Graff, Landers, Cirille, Wilcox, Larkin, Evans, Jackson, DeCarlo, Hanes, Van Vleet) Respondent testified as a witness and denied ever making improper phone calls to Jill Alexander Saur or showing a magazine article to Darlene Wilcox. He denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He stated that she was a pour student and unreliable when given a student task. Another teacher corroborated his testimony as to the student's unreliability. Respondent denied pushing against Susan Clement at the classroom sink or pinching her buttocks, but conceded that he might have grabbed her neck when she did not "clean up her mess" in the classroom. Respondent testified that after he notified Sherry Larkin's mother about the thin blouses she was wearing, her personality changed and she became angry and frustrated at him frequently. Prior to that incident, she had confided in him concerning spending a weekend with her boyfriend and giving him personal information concerning the fact that her sister was living with her boyfriend and that he dealt in drugs. He admitted that he had told a student, Nancy Brown, that she should wear better bra support on one occasion when she was wearing a knit top that was "very revealing." Respondent stated that the reason he had visited the Crown Bar was to join students whom he was teaching at night at Broward Community College. On the occasion when he introduced himself to Kathy Weber there, he discerned from her conversation that she had a "problem" with her boyfriend and that he later asked her to go to a shopping center in order that they could talk about her problem without being accused of doing something improper. He believed that she was probably drinking because of her problem and that he wanted to gain her confidence and then try to counsel her not to drink. In regard to the allegations involving Tammy DeCarlo, Respondent testified she seemed upset when he first saw her in a school corridor and that he had recently been advised by the assistant principal that students and parents were complaining that he was not being "consoling enough to my students." Therefore, even though he had been warned at the end of the prior academic year not to become personally involved with the students, he decided to talk to Tammy and was able to calm her. He admitted giving her paper flowers in his office and testified that they talked about ESP because she had said that her mother had studied the subject. He admitted making the statements relating to birth control and oral sex to Tammy because it seemed that she was having trouble with one of her boy friends and that she had said her sexual relationship with the boy was "old hat." In that regard, he testified in part as follows: When we were talking about her boy friend and her intercourse with her boy friend, I believe I made the statement, "Do you play it safe?" She said, "Yes." She said that she used the foams and he used condoms. Here again, I stated, Well, this is your thing, or that is your life. I think that she made the statement that he wanted to try something different. I may have said, do you mean oral sex, you know, kind of in a shocking manner. She said, I believe at the time, she agreed at the time, that this is what he wanted to do. She said something about, she wasn't quite sure about it. I said well, that is your life, your decision. Respondent conceded that he had been counseled concerning his relationship with female students by the principal about four times. He is of the opinion that school guidance counselors have too much paper work and could not see students on a personal basis. Therefore, he felt that if anyone had a problem they could come and talk to him because he could "listen well." He stated that he had "straightened out" a number of students and they and their parents had complemented him in the past. He denied any ability to read minds or that he had told the assistant principal that he could do so. It is found that Respondent's testimony wherein he denied the incident involving student Wilcox, and denied the physical actions involving students Evans and Clement is not credible. His testimony denying the telephone conversations with Jill Saur is not considered credible, but her testimony was received in evidence solely for the purpose of showing a motive, intent, or design regarding Respondent's relationships with other students. (Testimony Of Respondent, P. Park)
Recommendation That Respondent be dismissed from his employment as a member of the instructional staff of the Broward County School System, pursuant to Section 231.36(6), Florida Statutes. DONE and ENTERED this 24th day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. George Allen, Esquire 116 Southeast Sixth Court Ft. Lauderdale, Florida Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Broward County School Board Attn: Edward J. Marko, Esquire Post Office Box 4369 Ft. Lauderdale, Florida 33338
The Issue The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.
Findings Of Fact Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives." On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan. The observation form notes under targeted behaviors: Serious deficiencies continue to persist. INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY, AND VOLUME OF VOICE, USE EYE CONTACT, SMILE, LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior. The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development: Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm. Ms. Rafferty did not mince words in concluding the observation narrative. She stated: I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools. Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on. The memorandum concludes: I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 18, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance. 5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance. 12-20: rejected as irrelevant and subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas. 21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents. 22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance. 26: rejected as irrelevant and subordinate. 27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music. 28-30: rejected as irrelevant and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the appropriate weight of the evidence. 46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence. 47-48: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Daniel H. Kunkel Kunkel & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Office of the Superintendent 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated August 28, 2014? If so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as the Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals, who hold a Florida Educational Certificate, when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. The parties stipulated to the following about Respondent, Susan Harrison: The Respondent holds Florida Educator’s Certificate 825145, covering the area of Mathematics, which is valid through June 30, 2014. At all times pertinent hereto, the Respondent was employed as a Mathematics Teacher at Coral Reef Senior High School in Miami-Dade County School District. Joint Prehearing Stipulation. At the time of hearing, Ms. Harrison was still teaching at Coral Reef Senior High School. Ms. Harrison is of Cuban heritage. “Both of [her] parents came over in 1960 from Cuba. They fled Cuba to come to this country.” Hr'g Tr. 205. Ms. Harrison is married to an African-American man. A Series of Unfortunate Remarks Turkish Music S.K. is of Turkish heritage; both of her parents are Turkish. She referred to herself at hearing as being “from Turkey.” Hr'g Tr. 28. S.K. is a Muslim. During the 2011-12 school year, S.K.’s first year in high school, she was a student in Ms. Harrison’s Honors Geometry class. On September 13, 2011, Ms. Harrison taught the class a lesson in Space Geometry and assigned them the activity of drawing three-dimensional shapes on isometric paper. Because the activity is “creative, the students were working in pairs which required mutual collaboration and discourse.” Pet'r's Ex. 4 at 22. When working in groups and engaged in creative activity, it is typical of Ms. Harrison to allow her Honors Geometry class to play music because she finds it encourages the students’ creativity. After listening to the Beatles for some time, Ms. Harrison asked the class if anyone had other music to play. S.K. announced, “‘Oh, I have my iPod. I can play music.’” Hr'g Tr. 28. S.K. did not say the music on her iPod was “Turkish.” S.K., moreover, did not have Turkish music on her iPod. She does not listen to it because, as she explained at hearing, “my Turkish is not . . . the best, so I don’t really understand the music, so it’s never been my genre, I guess you could say.” Hr'g Tr. 28. Ms. Harrison declined S.K.’s offer and in doing so referred to her music as “terrorist music.” Reports of six students (including S.K.) dated October 5, 2011, who remembered hearing the remark, differed as to the exact reply by Ms. Harrison, but those who heard and remembered the remark made by their teacher all agreed that Ms. Harrison used the words “terrorist music” to describe S.K.’s offer. S.K. described the reaction of the students who sat near her: And the girls I was sitting with, they were also asking me, “S., did you hear that?” And “Did you hear what she said?” And I was, like, “Yeah, I did.” And they’re, like, “You’re not going to say anything?” I was, like, “I don’t know what to say.” Hr'g Tr. 27. S.K. later described her reaction as shock and confusion. When counsel asked her why at hearing, she offered this explanation: Because I’ve never been faced with a problem like that before and because I was very young . . . I was just starting high school and it was the beginning of the school year, and I was . . . already nervous from starting a new school with all these older kids, and I just – I don’t know. I was young. I didn’t know how to react. Hr'g Tr. 29. In contrast to S.K.’s testimony and statements of students in accord, Ms. Harrison’s assertions of what took place during the incident varied. At first, in making a written statement on Miami-Dade County Public Schools letterhead as to “Incident #T02369,” see Petitioner’s Exhibit 4, she did not relate that she had used the word “terrorist” to describe S.K.’s music. The reason for omitting the central word she had uttered that led to the moment in the class becoming classified by the school as an incident under investigation was because she dismissed it as a “non-event” and she, therefore, “left a lot of things out [of the written statement].” Hr'g Tr. 118. Later, despite her “short memory,” Hr'g Tr. 117, and after having thought and thought about what happened, she recalled the event in detail. Compare Petitioner’s Exhibit 4 with Petitioner’s Exhibit 1 and her testimony at hearing. See also Hr'g Tr. 117- 118. She testified that she had asked what type of music it was that S.K. had offered to play. She averred at hearing and in her deposition that after the inquiry and over the noise of the classroom, she had heard the response from the students as “terra music” and then “terrish music” and, making out the responses as best she could, only then did she say: “‘Terrorist music?’ . . . ‘I can’t play terrorist music.’” Hr'g Tr. 120. 10. While the product of Ms. Harrison’s attempt to recollect is an explanation that makes sense and, standing alone, seems believable, it was not corroborated by anyone present. Written statements were submitted by eight students, including S.K. One of the students did not “remember any negative comments in Ms. Herrison [sic] class.” Pet'r's Ex. 6 at 16. The entirety of another of the students’ statement is that “Ms. Harrison did not say any bad comments about music during the class.” Id., at The statements of the five remaining students (other than S.K.) all assert that the word “terrorist” was used by Ms. Harrison. None of the students’ statements describe any difficulty Ms. Harrison had hearing or any questions by her about “terra” or “terrish” music. Nor was there any explanation from any of the class' students, who submitted written statements or testified at hearing, as to why the remark would have been an innocent one due to difficulty in hearing or any misapprehension on the part of Ms. Harrison. Ms. Harrison’s accounts differ materially from S.K.’s distinct, precise, explicit, and, therefore, credible testimony. Of particular relevance in finding S.K.’s version of events more credible is her distinct memory of the incident. Weighing heavily in S.K.’s favor is her straightforward testimony that she: first, offered only to play music on her iPod and did not verbally offer to play “Turkish” music; second, does not have Turkish music on her iPod; and third, does not listen to Turkish music because she does not understand it well enough due to a lack of fluency in Turkish. Aliens and UFOs To signal the end of time for a test in her classes, Ms. Harrison used a device that sounded an alarm. The alarm had several sounds. One of the sounds was similar to that associated with an unidentified flying object (UFO) or, as Ms. Harrison described it at hearing, “[i]t was like a spaceship, woo, like that." Hr'g Tr. 157. On a number of occasions when the device sounded the UFO-type alarm, Ms. Harrison made a comment to one of her students, C.B., along the lines of “your family is calling you.” On another occasion, when the class was engaged in an activity that utilized a picture of an extra-terrestrial alien on the board, Ms. Harrison said to C.B., “Oh, C., I picked this one especially for you.” C.B. was approximately 16 years of age when the comments were made. She did not find them to be funny no matter how Ms. Harrison intended them. In a written statement submitted to the school district, C.B. described her reaction, “it made me feel bad because she was embarrassing me in front of the whole class and I came home crying." Pet'r's Ex. 6 at 39. Asked about that moment at hearing, she explained why she had been so upset: Because I was just over her, like, making these comments . . . it wasn’t the first day, because she . . . repeatedly called me an alien. It was probably . . . when it got excessive, that I was just tired of it. Hr'g Tr. 107. C.B. is of Haitian heritage. When she told her mother about the comments, her mother e-mailed Ms. Harrison and contacted the school authorities. Eventually, C.B. met with Mr. Mejia, the assistant principal at Coral Reef High School. After her meeting with Mr. Mejia, Ms. Harrison stopped the practice of referring to C.B. or her family as extra-terrestrial aliens. Ms. Harrison was aware of C.B.’s heritage. See Hr'g Tr. 159. But when she made the comments, it was not directed to C.B. or her family being Haitian; nor was it intended in any manner as a reference to undocumented or illegal aliens. The comments referred to C.B. and her family as being extra- terrestrial or from outer space. C.B. was described by other students to the effect that she had a distinct personality and was in her own world. Ms. Harrison perceived C.B. in much the same way. As Ms. Harrison testified, therefore, the comments were not “anything about her being Haitian, anything about her nationality. It was just her overall personality.” Hr'g Tr. 158. From the beginning of the school year, Ms. Harrison had had trouble with C.B. being on the telephone in class and being “flighty.” Id. Eventually, Ms. Harrison telephoned her mother to discuss C.B.’s classroom behavior. Through these encounters, Ms. Harrison felt like she had a connection to C.B. and her family. Because of C.B.’s behavior in class, her personality, and Ms. Harrison’s relationship with C.B.’s mother, Ms. Harrison mistakenly thought C.B. would not take offense at a reference to her or her family as being from “outer space.” However innocent Ms. Harrison’s intent, the comments singled out C.B. in an unflattering manner, embarrassing and upsetting her. C.B.’s reaction was reasonable. Ms. Harrison’s expectations were not. The consequences of the comments to C.B. should have been expected since she was a 16-year-old girl in the midst of a classroom of students and most importantly, since the comments were made by the teacher of the class. Crying to Mommy In the fall of 2011, Ms. Harrison also taught an Algebra I class. D.G. was a student in the class. She submitted a written statement to the Coral Reef Administration that Ms. Harrison had said the students’ prospects after high school would be no more than flipping burgers and strumming their lips, as if they were a musical instrument, indicating a bleak future. D.G. took the comments to mean that Ms. Harrison intended to communicate that the students’ generation was “dumb.” D.G. said the comments lowered her self-esteem because, in her words, “math for me is not my strongest subject, so I was already . . . doubting myself, and these comments just made it even worse.” Hr'g Tr. 65. Ms. Harrison admits making the remark about flipping burgers and that she strummed her lips to indicate what the future held for them, but she did not refer to D.G.’s generation as “dumb.” The remarks were not intended by Ms. Harrison as a comment about D.G., but on students in the class whose behavior was disruptive. She wanted them to take education as seriously as she does. Her purpose was to encourage the disruptive students to behave and buckle down to their studies so that they would succeed after they left school. Ms. Harrison’s motive was not understood by D.G. She complained to her mother. D.G.’s mother wrote to Ms. Harrison in Spanish, and Ms. Harrison called D.G.’s mother and talked to her by telephone. The next day, Ms. Harrison, with the intention of referring to D.G., made the comment to the class to the effect, “Who else wants to go home crying to their mommy?” The class laughed at the question, and the laughter embarrassed D.G. Ms. Harrison felt that D.G. had not fully informed her mother that the “flipping burger” comments and the strumming of her lips were because of misbehavior in the class. After she had spent a full hour on the telephone with D.G.’s mother, Ms. Harrison was upset. She argued that the reference to “crying to your mommy,” was not inappropriate under circumstances in which she had to explain the context of her comments about flipping burgers and the strumming of her lips to D.G.’s mother, a context which she believed justified her earlier words and actions. Reprimand On October 28, 2011, Ms. Adrienne Leal, Principal of Coral Reef Senior High School, issued a written reprimand to Ms. Harrison with regard to the “terrorist music” comment. The written reprimand, in the form of a Memorandum, see Petitioner’s Exhibit 5, after describing the details of the incident the previous September 13, states: This infraction was found to have Probable Cause by Preliminary Personnel Investigation, Administrative Review, Case # T-02369. By making that comment, you have violated School Board Policies 3210, Standard of Ethical Conduct, and 3210.1, Code of Ethics. It is your responsibility as a Miami Dade County Public School (M-DCPS) employee to conduct yourself in a manner that reflects credit upon yourself and the district. Therefore, you are hereby officially reprimanded for the above-stated actions. Id. You are directed to immediately refrain from making any discriminatory, disparaging or negative remarks toward students. The Amended Administrative Complaint’s Material Allegations In addition to alleging that Ms. Harrison was disciplined for violations of the district’s rules and the Code of Ethics, the Amended Administrative Complaint makes six specific material allegations of inappropriate and disparaging comments to students. Alleged to have occurred in the Fall of the 2011-2012 school year, they are: Female student S.K., who is Muslim and of Turkish heritage, offered to play music on her iPod portable music play[er] for the class. The Respondent commented that she didn’t want to listen to “terrorist music.” The Respondent’s comments was [sic] heard by other students and was upsetting to S.K., who was removed from Respondent’s class; and The Respondent used an alarm devise for testing which omitted [sic] a UFO type sound. When the sound occurred, Respondent made several references that female student C.B., who is of Haitian heritage, was an alien. The Respondent’s comments were heard by other students and were upsetting to C.B. The Respondent made derogatory comments if a student asked a question more than once including “Your generation is dumb and all of you will end up flipping hamburgers.” Female student, D.G., was offended by Respondent’s comments and told her parents. D.G.’s mother wrote an e-mail to cease and [sic] such demeaning comments. Respondent became upset over the e-mail and during class commented on the e-mail, stating “Who else wants to go crying to their mommy?” or words to that effect. The class laughed at Respondent’s comments which embarrassed D.G. Respondent has also made comments to the class that “Their generation is so dumb that you’re going to strum your lips thinking it was a musical instrument.” Respondent would flap her lips with her index finger to demonstrate. Respondent admitted to her administrator of making negative remarks, such as “flipping burgers for a living” and flapping her lips using her index finger, as if all of the students were dumb. Amended Administrative Complaint, at para. 3., second page. Other Students’ Impressions Sadam S.A. is from Honduras, but his family is from Jordan. S.A.’s first name is Sadam because his family “like[s] Arab names.” Hr'g Tr. 183. S.A. attended Coral Reef Senior High School from the 9th through the 12th grade. During that time, he was in Ms. Harrison’s Algebra II class. Ms. Harrison never made fun of S.A.’s name. Nor did she ever make comments about any of the students’ national origin in his Algebra II class. She never referred to any of the students in the class as “dumb” or “stupid” or any similar adjective. S.A. was in Ms. Harrison’s class during the 2011-12 or 2012-13 school year; he could not remember which. He was not, however, in S.K.’s class when the remark was made by Ms. Harrison about “terrorist music.” K.B. K.B. was a student in three of Ms. Harrison’s math classes from 2011 to 2014. One of the classes was the Honors Geometry class in which the “terrorist music” comment was made. K.B. heard S.K. ask to play her music on September 13, 2011, but the class was “loud enough,” Hr'g Tr. 189, that he did not hear Ms. Harrison use the word “terrorist.” S.K. sat six or seven seats behind K.B., and he does not remember anyone in the class that seemed to be upset by the colloquy between Ms. Harrison and S.K. K.B. described the “UFO-type” sound when Ms. Harrison’s alarm went off as “an old movie alien abduction sound.” Hr'g Tr. 190. He remembers C.B. as a student “in her own little world,” id., and he took Ms. Harrison’s remarks to C.B. to be that C.B.’s “parents are aliens from outer space and they’re coming to get her.” Id. K.B. was “born American,” but both his parents and his ancestry are Jamaican. Ms. Harrison never made any comment about his national origin, nor has he ever heard Ms. Harrison make any prejudicial statement about students in the three classes he took from her. He described Ms. Harrison at hearing: “She has a good humor. She’s a good teacher.” Hr'g Tr. 191. K.B. remembers the students laughing at Ms. Harrison’s remark about C.B.’s family the first time Ms. Harrison said it. But he doesn’t think they laughed the other three, four, or five times Ms. Harrison made the remark because by then it was “old news.” Hr'g Tr. 192. A.C. A.C. was in Ms. Harrison’s Honors Geometry class with S.K. and C.B. when he, like S.K., was a freshman. The Beatles music that played before the “terrorist music” comment was from his iPod. A.C. remembers the incident, but he did not “hear exactly what was said” because “the whole room was being sort of rowdy. It was towards the end of the period, so everyone was being loud.” Hr'g Tr. 197. With regard to the comments made to C.B., A.C. took them as a joke. His assessment of the environment in the class was that it was “very light . . . it was sort of a jokey, light atmosphere for most of the year,” Hr’g Tr. 199, so he did not “think there was any . . . weight behind [Ms. Harrison’s] words.” Id. When asked at hearing if he had ever heard Ms. Harrison make an inappropriate remark in class, he replied, “Not that I can remember. Not that I can think of.” Id. Ms. Harrison’s Record and Devotion to Teaching Ms. Harrison has been teaching in the Miami-Dade County School System since the year 2000. She has never been disciplined by the Department of Education. She has never called any of her students “dumb or stupid.” She has never made fun of any of her students’ national origin. She professed at hearing to have never intentionally embarrassed any of her students. At the close of the hearing and her defense, Ms. Harrison summed up her devotion to her profession and the nature of flawed human beings: I became a teacher for all of the right reasons . . . in my late 30s. And I love to teach. I love being with the kids. * * * I take education very seriously. And I want my kids to be the best they can. And I take on my students as my kids, almost as if they were my own . . . sometimes I’m a little bit stricter with them . . . sometimes you can be a little bit more light-hearted. There [are] so many different personalities. But I love to teach and I would never really do anything – if I hurt somebody’s feelings and they came to me –- I . . . [took] one student under my wing, because . . . her mother had cancer, and I did everything I could to try to encourage her . . . . So I try to do as much as I can to help these kids out. That’s the type of teacher I am. * * * ometimes I’m not perfect, and I’ll say something that somebody hears the wrong way, but we’re all human beings. That’s . . . just the nature of . . . being a human being . . . . Hr'g Tr. 206-207.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty as charged under Counts 1 and 3 of the Amended Administrative Complaint, not guilty as charged under Count 2, and that the penalty be placement of her educator’s certificate on probation through the expiration of the 2015-16 school year with a condition of probation that she complete course work at an appropriate level in the areas of classroom management and sensitivity in communications with students. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2015. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Branden Vicari, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Whitelock and Associates, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1987.
Findings Of Fact The Respondent holds Florida Teaching Certificate No. 559726. During the first semester of the 1988-1989 school year, Respondent Hernandez was employed as a band director at Estero High School by the School Board of Lee County. The Respondent did not have continuing contract status within the school district as he had been employed by the local school board for only one full school year prior to the schools year in question. On Friday, November 11, 1988, Respondent and the Estero High School Band traveled by bus to a football game at Okeechobee High School. The bus trip took place after regularly scheduled classroom hours. As part of his transport procedures, the Respondent had some parents of the band members aboard the bus. The parents were seated at various locations throughout the bus to assist in the chaperoning of the students. During the trip, Respondent was seated by himself in the front right seat directly behind the stairwell. There were adult chaperones in the seats directly to his left, behind the bus driver. At least one adult was seated directly behind the Respondent on the right side of the bus. The purpose of the trip to Okeechobee was for the band to acquire another live performance prior to the band competitions which were scheduled during the upcoming week. The Respondent, who was then only twenty-seven years old, was proud of his band's exceptional accomplishments during his term as band director at Estero High. The parents and boosters of the band were also pleased with the students' accomplishments, and generally considered the Respondent to be a gifted and dedicated band director. His ability to relate to the students on a personal as well as professional level was lauded and encouraged by the parents. Respondent's own ideals of what his role ought to be in the lives of his students expanded during his employment at Estero High to include a role as chief confidant and provider of guidance to all students in need of assistance. The students readily accepted the additional attention and support from the Respondent. As part of his expanded role in his relationship with the students, Respondent allowed the seventeen-year-old female flag twirler, S.S., to discuss a very personal matter with him on the trip to Okeechobee. The student approached the Respondent and discussed her personal concerns and feelings about her sister's decision to date a previous boyfriend of hers. The student sought personal advice as to why she should not pursue a relationship with this former boyfriend. The Respondent listened sympathetically, and advised that it would be improper for her to indulge in a relationship with the ex-boyfriend, an adult. The taboos against minor-adult relationships were alluded to in a generalized, impersonal way. At the end of the counseling session, the student returned to her chosen seat in the back of the bus, and the trip to Okeechobee proceeded without incident. The student's discussions with the Respondent and his advice was considered by both of the participants as part of their student-teacher relationship. The Respondent and student were each of the opinion that a strictly professional relationship had been maintained over their prior school year and current school year association with each other. During the first two hours of the return trip home, many of the students were asleep. The band's performance took place after the game, and the students were tired. S.S. discovered that she was wide awake and generally bored during the return trip. She observed that the Respondent, who was seated up front, was also awake. After awhile, the bus stopped at a McDonald's restaurant to allow the passengers to eat. When the students returned to the bus, S.S. asked to borrow the Respondent's jacket. The student was cold because she was wearing shorts and had not contemplated the cooler temperature. Upon receiving the jacket, S.S. returned to her designated seat in the back of the bus. At one point, S.S. decided to visit with the Respondent. She went to the front of the bus and sat beside him. The student continued to use his jacket to cover her knees and lower legs. Between her knees and her shorts, her thighs were exposed. During their conversation, the student covered her arms and legs with the jacket, leaned forward in the seat, and began to playfully poke at Respondent's knee. The Respondent did nothing about these antics, which went on for only a short period of time. The student then slid her hand to the Respondent's mid- thigh. The Respondent perceived that the touching had become improper. He immediately reached over and stopped her hand from sliding further up his thigh. He firmly held her hand to communicate his disapproval of her behavior. He did not verbally admonish the student because he did not want to embarrass her or himself on the bus. He also believed that his non-verbal communication would be effective. Unfortunately, the student misinterpreted the squeezing of her hand and his release of it as an affectionate, "go ahead" signal. Upon the release of her hand by Respondent, she moved her hand to his genital area. The Respondent was not immediately aware that the student had misinterpreted his signal of disinterest. To his embarrassment and in reinforcement of the student's perception of his communication, her hand quickly located an aroused area of his body. Realizing he had completely lost control of the situation due to his involuntary biological response, the Respondent turned his entire body away from the student as another, stronger signal of disinterest. To his dismay, this movement allowed the student a surer grip on the area where her hand was located. The Respondent then shifted his body and crossed his legs in a fashion that required the student to remove her hand. The touching took place over a very short period of time that neither party could reliably estimate with any accuracy. Further conversation did not take place, and the student remained in the seat during the rest of the trip, which lasted about one-half hour. After thinking about the incident over the weekend, the Respondent spoke to the student the following Tuesday about disclosing the occurrence to a school official or her mother. The Respondent told the student that he would have to go to the school officials about the incident. Prior to his meeting with the student, the Respondent had arranged for a female music teacher to be available for the student. He had told the teacher of the incident and his concern that the student was attempting to pursue a non- professional relationship with him. He was also concerned for the student's emotional well-being when he reported the incident. Once the student realized that he was going to report the incident, she agreed to speak with the female music teacher while the Respondent made his report to an assistant principal on Tuesday afternoon. After reporting the incident, the Respondent continued to cooperate with the school administration and the Lee County School District in their investigations of the incident. During the incident which took place on the bus, the Respondent considered himself the victim of a seduction. In spite of this, he remained professionally concerned about the student and considered her welfare from the beginning of the incident until the close of the investigations. The character witnesses presented by the Respondent testified that he is an excellent band instructor and is of good character with excellent morals. His ethics regarding his relationship with students consistently met the high standards required in his teaching position.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent in Case No. 89-3661 be DISMISSED. DONE and ENTERED this 29th day of December, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3661 Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #3. 4. Rejected. See HO #10 and HO #11. 5. Accepted. See HO #12. 6. Rejected. See HO #12. 7. Rejected. See HO #12. 8. Rejected. See HO #13. 9. Rejected. See HO #15 and HO #16. 10. Rejected. See HO #16. Rejected. See HO #17. Accepted. Accepted. See HO #9. Rejected. The bus stairwell was lit in front of the Respondent. Accepted. See HO #18. Rejected. See HO #19. Accepted. See HO #15. Rejected. See HO #15. Accepted the first sentence. See HO #19. The rest of the sentence is rejected as contrary to fact. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Contrary to fact. Accepted. Rejected. See HO #12 - HO #15. Rejected. Irrelevant. Rejected. The basis of the opinion was found to be factually incorrect by the Hearing Officer. Accepted. See HO #12. Rejected. See HO #12 - HO #15. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Rejected. Irrelevant. 4. Accepted. See HO #3. 5. Accepted. See HO #7. 6. Accepted. See HO #7. 7. Accepted. See HO #8. 8. Rejected. Irrelevant. 9. Rejected. Irrelevant. 10. Accepted. See HO #4. 11. Rejected. Irrelevant. 12. Accepted. See HO #10 and HO #11. 13. Accepted. 14. Accepted. See HO #12. 15. Rejected. Irrelevant. 16. Accepted. See HO #12. 17. Accepted. See HO #12 and HO #13. 18. Accepted. See HO #15. 19. Accepted. See HO #15. 20. Accepted. See HO #17. 21. Rejected. Irrelevant. 22. Accepted. See HO #20. 24. Rejected. Improper conclusion. 25. Accepted. See HO #20. 26. Rejected. Irrelevant. 27. Rejected. Irrelevant and contrary to fact. 28. Rejected. Irrelevant and contrary to fact. 29. Accepted. 30. Accepted. 31. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Rex D. Ware, Esquire HUEY GUILDAY KUERSTEINER & TUCKER, P.A. Post Office Box 1794 Tallahassee, Florida 32302 Robert J. Coleman, Esquire COLEMAN AND COLEMAN Post Office Box 2089 Fort Myers, Florida 33902 Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Commission Florida Education Center, Suite 352 325 West Gaines Street Tallahassee, Florida 32399-0400 Leslie Weaver Procedural Safeguards Florida Education Center, Suite 614 325 West Gaines Street Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue Whether Respondent, Lucille Stuart Foster (Respondent), violated provisions of Florida law governing teachers and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate, and are alleged to have violated provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2010). Respondent holds a teaching certificate in Florida, Certificate Number 383630, that covers the areas of reading, mathematics, and music. Respondent's certificate is valid through June 30, 2015. At all times material to the allegations of this case, Respondent was employed by the Collier County School District (District) and worked as a music teacher at the elementary school level. Prior to the allegations encompassed within this case, Respondent had not been disciplined by the District. Respondent was employed by the District from 1976 through the 2009-2010 school year. With the exception of one year, Respondent's performance evaluations have been acceptable until the allegations of this matter arose. Prior to the 2008-2009 school year, Respondent was assigned to one school on a full-time basis. Beginning in 2008, Respondent was assigned to be an "itinerant" teacher. As such, Respondent was directed to teach at three different elementary schools and to move among the schools during the school week, as her schedule dictated. The three schools were Corkscrew Elementary, Golden Terrace Elementary, and Big Cypress Elementary. An administrator at each of the schools was assigned supervision and evaluation duties for Respondent's job performance. All of the administrators required that Respondent prepare and submit lesson plans for review. All of the administrators observed Respondent in the class setting. All of the administrators found deficiencies in Respondent's job performance. At the conclusion of the 2008-2009 school year, the District returned Respondent from her continuing contract status to an annual contract. More critical to this case, however, is the fact that the District put Respondent on a prescriptive plan for improvement so that she could address the deficiencies in her work performance. The District offered support services to encourage Respondent to make the improvements needed. Respondent did not acknowledge, and does not acknowledge, that her work performance during the 2008-2009 school year was unacceptable. Respondent maintained that one of the administrators harassed her and then wrongly sought to discipline her. When the 2009-2010 school year began, Respondent was directed to complete remediation so that the problem areas of her job performance could improve. Specifically, Respondent was to prepare and timely submit appropriate lesson plans. She was to follow the plans in the teaching of her students. She was to maintain classroom decorum so that students would remain on task and not disrupt or interfere with the learning experience. In recognition of the difficulty of teaching at three different schools, Respondent was allowed to prepare one lesson plan that could be implemented at all three locations. It was expected that music students would prepare for and publicly perform at designated school functions. In the past, Respondent successfully led her students in many performances that demonstrated an appreciation for music and musical achievement. During the 2009-2010 school year, however, Respondent's ability to focus on the improvements sought by her administrators diminished. As her frustration level grew, her civility toward one of the administrators waned. Respondent was convinced that efforts to assist her were not genuine. Principal Lettiere, Respondent's supervisor at Big Cypress Elementary School, identified the following deficiencies in Respondent's job performance: Failure to have lesson plans; Failure to timely submit adequate lesson plans; Insufficient delivery of lesson plans to the class; Failure to tie the lesson plan to the lesson taught; Failure to timely report for work; and Failure to provide an accommodation for a student with disabilities during the music lesson. Principal Lonneman, Respondent's supervisor at Corkscrew Elementary School, identified the following deficiencies in Respondent's job performance: Failure to keep students engaged during class time; Failure to include musical instruments into the music curriculum; Failure to timely prepare lesson plans; and Failure to incorporate the music curriculum within lesson plans. Principal Glennon, Respondent's supervisor at Golden Terrace Elementary School, observed Respondent multiple times during the 2008-2009 school year. Principal Glennon documented the following deficiencies in Respondent's job performance: Failure to keep students on task; Lack of classroom management skills; Failure to have a structured lesson; and Failure to follow adequate lessons. Principal Glennon tried to meet with Respondent to go over the deficiencies, but Respondent did not timely comply with his requests for a conference. Instead, Respondent has steadfastly and resolutely claimed her teaching skills to be adequate, if not superior. In February 2009, Principal Glennon cited Respondent for failure to report to work; failure to provide a classroom management plan, as he had requested; and failure to redirect students who engaged in off-task behaviors. In March 2009, Respondent was advised that she would be returned to annual contract status at the end of the school year. Respondent received a contract for the 2009-2010 school year, but began the year with a plan for her improvement in the classroom. Respondent was afforded 90 days within which to improve her performance. Mr. Glennon hoped that by outlining the areas that needed to be improved, Respondent would soldier on and make the necessary corrections. When Respondent failed to address the concerns outlined by her improvement plan, her school administrators, with the consent and authorization of the District superintendent, removed her from the schools. Respondent was placed in the status of "pool" teacher and completed the 2009- 2010 school year in that assignment with benefits and salary. At the end of the year, Respondent's contract was not renewed. Respondent is a talented musician who played with a local symphony for many years. Early in her career, Respondent was effective as a music teacher. Respondent was praised by former administrators who worked with her during those times. None of the former administrators observed Respondent during the periods of time critical to this case. It is unknown whether during those earlier years the requirements regarding lesson plans, classroom management, and curriculum were the same or similar to the requirements of the 2008-2009 and 2009-2010 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's teaching certificate be suspended for a period up to one year during which time Respondent be required to successfully complete continuing education courses to address Respondent's deficiencies in classroom management, lesson plans, and professionalism. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012. COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Ronald H. Youmans (Youmans), was born July 28, 1948. Educated in Tennessee with a Bachelors degree in Music Education, he moved to Titusville, Brevard County, Florida in 1972 with his wife, Frances (Fran) and his then two-year-old daughter, Lisa. He assumed the position of music teacher/band director at Jackson Middle School in Titusville, for the Brevard County School District, for the 1972-73 school year. Youmans continued as a music teacher/band director under a continuing contract in the Brevard County School District for twenty-three years, until his suspension or reassignment in 1995. He moved from Jackson Middle School to Titusville High School in 1981, and then to Cocoa High School in 1987. Throughout his twenty-three year career Youmans received excellent performance ratings from his superiors. He participated actively in band- related programs: taught summer recreation band and jazz band, served as judge in state-wide band competitions, led the Bicentennial Band in 1976, and taught private music lessons along with his wife, Fran, at Jack's Music Store in Titusville. His bands and his students excelled; they marched in parades, participated in band contests and won awards and high praise from parents and peers. From witnesses for both parties in this proceeding there was an outpouring of appreciation of Youmans' talent as a band director. The Youmans family expanded to include a second daughter, Karen, born in 1976 and a son, Mark, born in 1977. The family was well-known and well-liked in the community. A simple visit to the mall would become a social event as former and existing students or their parents would greet and chat with the Youmans. The position at Jackson Middle School was Youmans' first teaching job. While band director there, Youmans was in his 20's and early 30's and "related" to his students. A coterie of adoring and particularly talented students, mostly girls, gravitated to his band room to "hang out" before and after school. Some helped out by filing music or performing similar clerical tasks; they were called "band-aides." Early on in his term at Jackson Middle School, Youmans became known as "Yogi" to his students. He did not view the nickname as a sign of disrespect and he enjoyed his obvious popularity, which popularity plainly contributed to the success of his music program. To the students, "Yogi" made band fun; he also made them work hard and they were successful. Band was like a big family; parents became loyal supporters and provided valuable volunteer services. The inner circle of students was known as the pet group. At some point Youmans got upset about the notoriety of the "pet situation" and he made up a pet application form and told students if they wanted to apply they would be instantly admitted into the "Pet Club." Fran also interacted with the students. She and the Youmans children attended band events; Lisa, starting around four years of age, marched in parades and practiced marching with the band. Fran taught private lessons to some students and was a youth leader at church. Some students, therefore, gravitated to the Youmans' home as well as to the band room; they dropped in to visit the family, sometimes baby-sat, ate dinner or spent the night. They visited Fran and gave her a baby shower when she was undergoing a difficult pregnancy with daughter, Karen, in 1976. Some of the interaction between the students and their band director was overtly physical: they gave him back rubs and back scratches and sat on his lap, gestures which Youmans avowed were directed to an avuncular or "Santa" figure and nothing more. Youmans was then, and still is, short and heavy-set. Some verbal interaction, or banter, between Youmans and his students was sexual in nature. A heavy-bosomed girl was called "Boom-Boom." "Twanging" was coined as the term for a girl going bra-less. To a girl named Jeannie, Youmans said, "I dream of Jeannie in a cellophane bikini." To another girl who had said that her glands were swollen, Youmans responded, "It's about time." Other interaction with the students was simply jejune. Youmans signed some yearbooks with his nickname, "Yogi", with a small valentine in lieu of the dot over the "i." One comment by Youmans in a girl's yearbook was "We're still going steady." The students bought him a pair of red socks with the word "sex" in small white letters which enlarged when the socks were worn. He wore the socks at the students' urging and the band was awarded "superiors" at the band festival. Thereafter, he wore them every year for the contest. Shelley Michelle Kerr (now, Michelle Kerr Stallings, or Shelley) was born March 3, 1963. At the end of her sixth grade in Titusville, she was in Youmans' summer recreation band. As a seventh grader at Jackson Middle School she enrolled in Youmans' band class. She was a quiet and attentive student, a very good clarinet player and one of the inner circle of students who hung around Youmans before and after school. Shelley also took private lessons from Fran at the music store and was in Fran's youth group at church. Shelley "bonded" with the Youmans family and spent time with them at their house, or in the early days - trailer, and on family outings. She baby-sat and sometimes spent the night. In 1976, in the second semester of Shelley's seventh grade, when she was in Youmans' office, usually after school and alone, the back rubs and lap- sitting escalated to kisses. At some point at the end of the seventh grade, Shelley and another band student, Barbara Kaufman, were visiting the Youmans' trailer. They had eaten dinner and the two girls were doing the dishes. Fran was not around. Youmans took turns with the two girls, taking one, then the other around the wall partition and hugged and kissed them. During the summer of 1976, Youmans kissed and fondled Shelley's breast or vagina on several occasions, at school or at the Youmans' home. She felt scared and confused, but trusted and loved him. Shelley knew Barbara Kaufman had a crush on him as well and she believed Youmans was also hugging and fondling Barbara. At the end of the summer when Barbara returned from her vacation, the two girls were at the playground at Coquina Elementary School near where they both lived. Shelley wanted to know how far Youmans had gone with Barbara. She tried to ask Barbara whether he ever lifted up her shirt, but had a hard time saying it and just gestured with her hands until Barbara insisted that she explain what she was asking. Shelley continued in band in the eighth grade. After school started in the fall, on an occasion after school hours, Youmans told Shelley he wanted to show her something. He took her to the band office and removed her pants and underwear and performed oral sex on her. Fondling and oral sex between Youmans and Shelley continued through her eighth grade year. The first act of sexual intercourse between Youmans and Shelley occurred when she was sixteen, in high school and driving a car. They met at a Burger King out by the beach and drove in her station wagon to the beach. She wore a bathing suit with shorts and a shirt over it. They had intercourse after oral sex, with the seats down in the station wagon. Afterwards they returned to the Burger King where Youmans left in his own vehicle. Sexual intercourse between Youmans and Shelley occurred approximately six times over the years until 1984. The occasions included a time when Shelley was spending a week in her parent's recreational vehicle parked out at Jetty Park at the beach. Youmans visited her the first night, and after that night Lisa Youmans came out to spend the week with Shelley. On another occasion around 1982, Youmans suggested that he and Shelley drive to Daytona Beach so he could take her out in public to dinner. They drove to Daytona but the restaurants were crowded so he checked into a Howard Johnson's motel, where they had intercourse. Other occasions included when Youmans was alone in his home and when Shelley was staying out at the beach in a motel. During this period, particularly during the earlier years, Shelley remained close to the Youmans family and was included in family outings, sometimes overnight trips. She loved Youmans and he told her he loved her. She also loved Fran and the kids and felt part of their family. The end of the sexual relationship between Youmans and Shelley occurred in 1984. Karen Youmans was having a birthday party and Shelley brought her a present. The party was winding down and Youmans announced he had to go pick up something at the band room. To Shelley, this was a cue for her to call him or meet him there. She left the party a short while later and found him in the band room. They hugged and kissed and Youmans suggested they leave the band room because a family friend, John Kuntz, was the security guard and lived in the security trailer at the high school. They left the school and drove around. As they returned to the high school parking lot, Fran was parked in the lot. She drove her car really fast toward the couple, then squealed her tires and left. Shelley knew Fran was upset. She got in her car and went to the house of her friend, a co-employee at a bank where Shelley was working. Shelley was distraught and told her friend that Fran Youmans had accused her of having an affair with Mr. Youmans and had tried to run into them. Later that evening Youmans appeared in his car outside the friend's house. Shelley went out to talk to him and he told her Fran had thrown his clothes out and he was going to spend the night at a hotel. She did not go to meet him there. By this time Shelley had started dating, having had, at age eighteen, a several-month sexual relationship with a fifty-year-old man, Fran's boss at a printing company and a friend of the Youmans family, a man Fran described as a "Don Juan." In 1985 Shelley dated Scott Schuler, a person she liked and trusted. After dating him approximately five or six months she confided in him about the relationship with Youmans. Scott Schuler noted that Shelley was very upset when she told him about Youmans. She was shaking and agitated, and hesitated to share the information. He spoke to a priest about her and she also spoke to the priest at Schuler's urging. She did not pursue counselling at this time because she was not ready. After 1985 Shelley had intermittent contact with the Youmans family. Fran was invited to Shelley's wedding shower held by Shelley's mother and sister in 1986. Fran called Shelley and said she wanted to be back in her life, to watch her kids grow up. Fran printed the birth announcement for Shelley's first child at Fran's print shop. The family came to visit Shelley at the hospital when she had her first child in 1989 and sat behind her in church at her second child's baptism in 1992. Barbara Barbara Kaufman was very different from Shelley Kerr, although Barbara, too, was a talented clarinet player in Youmans' band. The same age, or a few months older than Shelley, Barbara was in the same grade as Shelley. Barbara was outgoing, fun-loving and even brash, but a well-focused music student. She was a drum major. Although Barbara and Shelley were both in the close pet circle, they had different best friends. Barbara also took music lessons from Fran and sometimes Youmans at Jack's Music Store. Youmans commenced a sexual relationship with Barbara around the same time as with Shelley, at the end of the girls' seventh grade. Once in the school cafeteria she burned her tongue on hot food and commented on this when the pets were gathered after lunch in the band room. Youmans told her to stick out her tongue and he would kiss it. Barbara's account of the kissing and hugging at the Youmans' trailer after dinner is very similar to Shelley's. Barbara felt Youmans cared very deeply for her and he told her she was special to him and that he loved her. She also loved him. During the summer of 1976 Youmans French-kissed Barbara in his band office when they were alone. This became a regular activity. Before she left for vacation he gave her three five-by-seven photographs of him directing the band or posing with the Jackson Middle School drum. She put them in frames and took them with her to Michigan because Youmans told her to think of him while he was gone. When she returned from vacation at the end of the summer, Barbara saw Shelley at the swings on the playground at Coquina Elementary School. After Barbara learned that Shelley's involvement had gone beyond the kissing and hugging, Barbara was very jealous. She rode her bicycle home and called Youmans at the band room. When she learned he was there she rode her bike to the school to confront him with what she learned from Shelley. Youmans reassured her that Shelley meant nothing to him. He hugged and kissed Barbara and fondled her breasts. He told her he loved her and someday they would get married. As drum major, Barbara was sometimes required to direct the band in parades and at school. She spent time with Youmans, in practice or alone. During Barbara's eighth grade at Jackson Middle School the relationship with Youmans developed into oral sex, in the band room, in the band office and sometimes in the back room of the music store when she was having a lesson. Barbara confided to Kerry, one of her close girlfriends, that she and Youmans were having a relationship, oral sex, but no intercourse. Kerry was a year younger than Barbara and is the sister of Barbara's current fiance. On several occasions Kerry observed Youmans drive by on his motorcycle or other vehicle and visit with Barbara in the back yard. When Barbara confided in Kerry, Kerry felt that Barbara was happy with the relationship and proud of Youmans. Youmans specifically told Barbara not to tell another girlfriend, Brenda Probst, of the relationship. Brenda was Barbara's best friend and Barbara believes Brenda would have immediately told her father. Brenda was aware that Barbara spent a lot of time with Youmans but at the time she assumed it was because Barbara was so involved with the band and was the drum major. Barbara told Brenda that Barbara would go back to the band room in the late evening or that Youmans stopped by her house on the way home sometimes, but Brenda did not see this herself. The relationship between Barbara and Youmans ended shortly after she entered high school and the opportunity for getting together diminished. Unlike Shelley, Barbara did not visit the Youmans family and was at their home on only a few occasions. In 1992, after high school, and after Barbara left and returned to Brevard County and was working with a church choir, she went to Cocoa High School to visit Youmans and to try to get some trumpet players for her choir's Memorial Day celebration. They discussed their lives generally; Barbara showed him pictures of her new house; they compared cars and she bragged about her cellular phone; he talked about his daughter, Lisa. Barbara got to the point of discussing her mother's death in an automobile accident and she started to cry. Youmans also cried and told her he was sorry if he ever caused her any emotional problems. This, Barbara believed, was a reference to their prior relationship, which she still considered a love situation, a special thing and a bond between them. Youmans' apology upset her and confused her. She left the band room and called her friend, Brenda, on her car phone, very upset and crying hysterically. Barbara told her friend about the encounter with Youmans and about the sexual relationship that she had believed was a love relationship. Brenda tried to calm her, but commented, "He molested you." In a subsequent conversation Brenda urged Barbara to go to a counselor. The "Hidden Camera" Jamie Lee Robinson was born March 16, 1979. In January 1994 she was a band student in Youmans' Cocoa High School band. She was a talented clarinet player and attended the all-state band festival in Tampa, Florida with Youmans and other band students. Jamie shared a hotel room with Jessica Sweeney, a band student from Cocoa Beach High School. On the morning of the first day, Youmans rang Jaime's room to make sure she was awake and getting ready. Jessica answered the phone and handed it to Jaime. Youmans told her that he had a camera in the room to find out whether the kids were behaving and he could see everything she did and wore. This troubled her but she was still half-asleep. She told her roommate about the call and Jessica tried to reassure her that there could be no such camera in the room. Later, Youmans called again as Jaime was getting dressed and buttoning her blouse. He told her to button her blouse because he could see everything. This completely unnerved her and she began looking for the camera. At some point she and Jessica discussed whether the fire or smoke alarm apparatus with a blinking light was really a camera. Still later, Youmans called the room again. This time Jaime was fully dressed, and when Youmans told her that he could still see everything and she needed to get dressed, she realized she had been duped. The episode embarrassed Jaime and for the rest of the trip she dressed in the bathroom or under the covers. She did not consider the calls a joke and was terrified that she would be ridiculed by the other band students. Weighing the Evidence Youmans vehemently denies having had a sexual relationship with Shelley or Barbara. He also denies that the phone calls to Jaime were any more than a big joke, enjoyed enormously by all of the students, including Jaime and her roommate. Youmans and his wife, Fran, admit there was a cataclysmic domestic dispute the night Fran found him with Shelley in the high school parking lot. Youmans admits accepting and wearing the "sex" socks; he admits the back rubs and lap-sitting (although he insists the students only sat on his knees); he admits having signed yearbooks on occasion with a valentine over the "i;" and he admits at least tolerating an atmosphere where off-color jokes, slang and nicknames were exchanged. It was also a fun and exciting atmosphere for his students, particularly those in his inner circle, the "pets" or "pet club." He was young, creative and very popular; the students sought his attention and affection. He was "teacher of the year" in 1975-76. Based on the overwhelming evidence in this proceeding, none sought his attention and affection more relentlessly than Shelley and Barbara, two very different adolescent girls. The overwhelming evidence in this proceeding establishes that he took advantage of their devotion and committed the alleged sexual acts. Their devotion and loyalty insured that they would not "tell" or otherwise jeopardize their privileged status. In making the ultimate finding of guilt the hearing officer has considered the credible testimony of the myriad witnesses who saw no sign of any impropriety in Youmans' twenty-three years of teaching in Brevard County. Many of these witnesses and even some who were called to testify on behalf of the school board failed to see some of the practices admitted by Youmans. The fact that the sexual misconduct allegations took approximately twenty years to reach the school board has also been considered. Evidence that both Barbara and Shelley disclosed their experiences to several confidants, male and female, at times over the twenty years has been credited. There is no evidence that this is a situation in which two girls individually fabricated or conspired in a vicious lie about a beloved teacher. Finally, Youmans has admitted that his "hidden camera" call or calls to Jaime were bad judgment. His version of the incident as a well-appreciated joke was not substantiated by any credible testimony.
Recommendation Based on the foregoing, it is recommended that the School Board of Brevard County enter its final order granting the Petition for Dismissal and terminating the continuing contract of Ronald H. Youmans. DONE and ENTERED this 13th day of June, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4242 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. The findings of fact proposed by Petitioner are adopted in substance, with the exception of certain numbered paragraphs which constitute more argument or discussion of the evidence than findings of fact. These paragraphs are excluded as being largely argumentative: 5.h, 15.F., 21-23. Respondent's Proposed Findings of Fact. The findings of fact by Respondent are all argument and discussion of the testimony. They have been considered, but the theories advanced in the argument, the proposed interpretations of the testimony, are rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Benjamin B. Garagozlo, Esquire ANDERSON and GARAGOZLO, P.A. 33 Parkhill Boulevard West Melbourne, Florida 32904 Virginia B. Townes, Esquire Peter L. Pollock, Jr., Esquire AKERMAN, SENTERFITT and EIDSON Post Office Box 231 Orlando, Florida 32802 Dr. David Sawyer, Superintendent Brevard County Schools 2700 St. Johns Street Melbourne, Florida 32940-6699 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
