The Issue The issue in this case is whether the School Board of Sarasota County should suspend the Respondent, William Keith Stark, without pay for ten days on charges that he violated F.A.C. Rule 6B-1.006(3)(a) by failing to make "reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."
Findings Of Fact The Respondent, William Keith Stark, is the band director at Sarasota High School. The Respondent's office is in an area of the school that houses both the band room and the chorus room, as well as the music library. The entrance to the Respondent's office is off a vestibule to the west of the office. There is a storage/copy room directly behind (to the east of) the Respondent's office. It is the same width as the Respondent's office. The only access to the storage/copy room is through a door in the rear of the Respondent's office. The music library is behind (to the east of) the storage/copy room, but it is only half the width of the Respondent's office and the storage/copy room. It is behind the southern half of the storage/copy room. Access to the music library is only through the band room; there is no access through the storage/copy room. The band room is a large room that runs along, and shares a wall with, the south side of the Respondent's office, the storage/copy room, and the music library. The chorus room is an equally large room that runs along, and shares a wall with, the north side of the Respondent's office, the storage/copy room and another, unidentified room behind (to the east of) the northern half of the storage/copy room. The entrances to the band room and to the chorus room are off the same vestibule containing the entrance to the Respondent's office. Since before the time the Respondent first came to Sarasota High School as an assistant band director in 1984, it has been the practice for band members to use the band and chorus rooms (and sometimes the music library) for changing clothes before practices and performances. If, for example, the boys used the chorus room, the girls in the band would use the band room, or vice versa. It was obvious and well known to anyone familiar with the band program that there was a window between the band room and what is now the storage/copy room. No privacy issue arose; apparently, appropriate steps were taken to insure the privacy of band members using the band room to change clothes. In approximately 1985, band booster parents suggested putting a dark, reflective film on the band room side of the window between the band room and the storage/copy room so that, from the band room side, the window could be used as a mirror for grooming purposes. The band director concurred, and it was done. The addition of the reflective film was viewed as an improvement to the facility and was obvious and well known to anyone familiar with the band program. Initially, there was no need to make a formal announcement as to the presence and nature of the reflective film. Although the dark film placed on the window was reflective, it was obvious and well known to anyone familiar with the band program that it was not a mirror. Band booster parents who chaperoned when the band room was being used as a dressing room before performances sometimes were in the storage/copy room and could see out the window into the band room. They also had access to and sometimes used the storage/copy room during monthly band booster parent meetings that were held in the Respondent's office. In addition, looking closely, it was possible under most conditions to see through the reflective film into the storage/copy room from the band room side. Even if vision was not clear, it would be possible to see shadows and movement. When a light was turned on in the storage/copy room (or, when the door between the two rooms was open, in the Respondent's office), it was easy to see into the storage/copy room from the band room side. The Respondent became the band director in approximately 1986. Over the years, the presence and nature of the reflective film continued to be common knowledge that was acquired by new band members and their parents by personal observation or passed along to them from others by word of mouth. No formal announcements were made. No privacy issue arose after the addition of the reflective film. First, as explained above, the presence and nature of the reflective film was obvious and well known. Second, as band director, the Respondent took appropriate steps to insure the privacy of band members using the band room to change clothes. He rarely was in his office, much less in the storage/copy room, while band members were using the band room to change clothes. When he was not in his office, it remained locked. In addition, the Respondent's wife is a full-time band volunteer, and she usually is stationed in the vestibule to control access to the band room and to the Respondent's office. In October, 1994, a privacy issue concerning the reflective film was raised for the first time. A dancer in "Palms," a dance group that is part of the school band, mentioned to her mother in the course of conversation that it was possible to see through the reflective film into the storage/copy room from the band room. In testimony at final hearing, the daughter admitted that she had known about the nature of the reflective film since she became a "Palms" dancer in the spring of 1994 and that she "didn't think anything of it" until her mother "explained it to her." Her mother "explained" that the presence of the reflective film was an invasion of her daughter's privacy and that the Respondent at least should have made an announcement as to the presence and nature of the reflective film. The complaining mother and daughter have been involved in ongoing disputes with the Respondent. One of their complaints was that the Respondent did away with the practice of having "Palms" team captains just before the daughter was to become a captain. Another complaint had to do with concerns about discipline within the "Palms" dance group. Perhaps, related to the discipline concern, the girl's mother also objected to the extent to which the Respondent's wife's was involved in the program. Eventually, she attempted to secure the school principal's promise to prohibit the Respondent's wife from further involvement in the program. When the principal refused to do so, the mother became angry and has been heard to vow that, before she was finished, she would have the Respondent fired. After sending her daughter and another student on a "spy" mission to ascertain the presence and nature of the reflective film, the mother complained to the principal. From what the mother told him, the principal thought the window should be covered. He contacted the school's custodian and instructed him to cover the window so that it was impossible to see through it. The next day, the Respondent saw the custodian as the custodian was getting ready to carry out the principal's instructions. When the Respondent asked the custodian what he was doing, and the custodian told him, the Respondent offered to do it himself. The Respondent generally tries to do the routine custodial work required in the area of his office so as to relieve the custodian from having to do it. In this case, the Respondent had additional innocent motivation for offering to cover the window for the custodian. The custodian had health problems (cancer, from which he has since died), and the principal had discussed with the Respondent the need to find ways to reduce the custodian's workload. The Respondent thought that the principal would have wanted him to offer to cover the window himself. The Respondent did not immediately get around to covering the window. But, in the meantime, and since approximately April, 1994, there had been a very large, stuffed, seated teddy bear on a shelf in front of the window. (Its shape was generally triangular, four feet wide at the base and four feet high. In the middle, it was about three feet wide.) There also were audio speakers on the shelf on either side of the teddy bear. These objects partially "covered" the window although it would still be possible to see around them. Before the Respondent got around to doing anything else about covering the window, another parent complained to an assistant school superintendent about a week later that the window still had not been covered. The assistant superintendent reported the complaint to the school principal. The school principal inquired of the custodian, who reported his conversation with the Respondent. The school principal then telephoned the Respondent at his home over the weekend and ordered him to immediately cover the window. First thing Monday morning, the Respondent hung and taped a piece of vinyl and poster board over the window to cover it. Later, the window was boarded over permanently. There was no evidence that anyone other than the vengeful mother and daughter, and the other parent who telephoned the school principal, ever has raised any privacy issue as to the window or the reflective film. All other band members and parents seem to fully support the Respondent and his wife. There is no evidence that any band or "Palms" member was unaware of the presence or nature of the reflective film on the window. Notwithstanding that there was no formal announcement as to the presence or nature of the reflective film on the window, it was not proven that the practice of using the band room for changing clothes invaded anyone's privacy, or that the Respondent failed to make reasonable effort to protect students from conditions harmful to learning and/or to their mental and/or physical health and/or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Sarasota County enter a final order dismissing the charges against the Respondent and to require that he be fully compensated for any period of suspension which he might have served. RECOMMENDED this 24th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2367 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. 2.-3. Rejected as not proven that it was a "mirror." Otherwise, accepted and incorporated. Rejected as not proven that it was a "mirror" or that only "some" knew "or strongly suspected" the presence and nature of the reflective film on the window. Otherwise, accepted and incorporated. First sentence, rejected as not proven that Baus did not know of the presence and nature of the reflective film on the window; otherwise, accepted and incorporated. Second sentence, accepted and subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Penultimate sentence, rejected as contrary to facts found, and to the greater weight of the evidence, to the extent that it implies that the Respondent covered the window immediately after his first conversation with the custodian. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Charles Williams, Esquire 1900 Main Street, Suite 205 Sarasota, Florida 34236 Mark Herdman, Esquire Herdman & Sakellarides 34650 US 19 North Suite 308 Palm Harbor, Florida 34684 Dr. Charles W. Fowler, Superintendent School Board of Sarasota County 1960 Landings Boulevard Sarasota, Florida 34231-6049 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Wieland has been employed with the Broward County school system for approximately twenty-three years. In the school year 1973/74, he held the position of Director of Exceptional Child Education. His immediate superior was the Program Director of Educational Services, Mr. Larry I. Walden, a member of the superintendent's staff. Dr. James R. Fisher served as Director of Psychological Services on Dr. Wieland's Exceptional Child Education staff. During the 1973/74 school year, several rather drastic changes were occurring with regard to the administration of the exceptional child education program. This was the year of decentralization in Broward County, where concepts of authority, decision-making, accountability and responsibility were filtering down to the building or school levels through the various principals. Also, the Florida Educational Financial Program began in that year. This program related to state funding for students based upon a particular weight factor assigned for students in different programs. The cost factors for programs for exceptional students is considerably higher than for basic programs. Beginning with the 1973/74 school year, the actual responsibility for placement of children and implementation of programs resided with the principals of the individual schools. The role of the Exceptional Child Education staff was then reduced to one of consultation, advice and administration. Prior to decentralization, psychological testing was conducted under the direction or supervision of the Exceptional Student Education Department at the Diagnostic Center. With decentralization, testing psychologists became a part of the staff of the area offices and were answerable to their respective area superintendents. With this change, they were repeatedly instructed that their functions were consultative and that they were simply to test students upon receipt of a request from a school's principal. Beginning with the 1973/74 school year, school psychologists, as well as the then Director of Psychological Services, were constantly concerned with the pressures being placed upon them by the school principals and area superintendents to rapidly test and certify students for eligibility in the various exceptional education programs. A count of such eligible students was to be made in October and February of each school year. The results of such counts had a tremendous effect upon the school principal's budget. Many school psychologists felt that students were being placed in programs without sufficient diagnosis or data. This, along with inadequate personnel, was a constant topic of discussion both among school psychologists and at meetings on the staff level. Mr. Walden, respondent's immediate superior, was informed by Dr. Fisher of files containing insufficient data and other procedural irregularities. Mr. Walden also attended some of the staff meetings at which various problems were discussed. No specific problems at Horizon Elementary School were discussed between Fisher and respondent Wieland during the 1973/74 school year. In fact, Dr. Fisher was unaware of any discrepancies or procedural irregularities at Horizon during that year. Conditions did not improve during the 1974/75 school year, according to various school psychologists and the exceptional education staff. They still felt pressure to rapidly identify eligible students for exceptional education programs in order to generate funding and they still felt there was inadequate staffing for psychological services. During this year, Mr. Joel Kieter assumed respondent's position of Director of the Exceptional Education Program and respondent became Coordinator of Special Services, formerly called Psychological Services. Thus, Mr. Kieter was respondent's immediate superior. During this year, Mr. Kieter's office had no direct role in the certification of students for the various exceptional education programs. The 1974 "District Procedures for Providing Special Education for Exceptional Students" specifically provided that: "In the process of decentralization the exceptional student personnel at the district level have been relieved of direct responsibility for administration and instruction. The respon- sibilities of such personnel are now consultative and advisory in nature. The primary responsibility for administration and instruction is at the building level." However, Mr. Kieter's staff did attempt to give guidance to school psychologists and administrative personnel regarding the criteria for placement and the required procedures to be followed. Among the duties of respondent Wieland during the 1974/75 school year was direct responsibility for the Diagnostic Center, which was a repository for some 35,000 to 40,000 student files. School psychologists were instructed to obtain a case number from the Diagnostic Center for all new student files and to send a copy of the completed file to the Center. At one time, they were told that they could retain the folders as long as they thought the case was active. Student files were also to be kept at the student's school and in the area superintendents' offices. Inasmuch as the school psychologists were accountable to the area superintendents, the Center and its staff had no authority and could do little more than request them to promptly forward the files to the Center. At times, staff at the Diagnostic Center would return files for parental consent forms. Numerous staff meetings were held by Director Kieter during the 1974/75 school year. During these meetings, the school psychologists complained of their heavy caseload, the lack of secretarial help and other staff, pressures placed upon them by principals and area superintendents to place children in programs, inappropriate testing and lost or misplaced files. These were general discussions and specific incidents were not related. Dr. James Fisher, who was the team leader for psychologists in the North-Central area, had general discussions with both Dr. Wieland, Director Kieter, and even Mr. Walden concerning the pressure he felt with regard to the rapid testing of children and the inadequacy of data in the files of children who had already been placed. Dr. Fisher expressed to them his fear that emphasis was being placed upon the filling of classes, rather than upon the individual students. During the school year 1975/76, respondent again occupied the position of Coordinator of Special Services and Joel Kieter was again the Director of the Exceptional Education Program. The building principal of the referring school or the school enrolling the student was directly responsible for placement in the appropriate exceptional student program. ("1975 District Procedures for providing special Education for Exceptional Students," p. 199, H(2)(c) and p. 3). The exceptional student education staff was responsible for the determination of eligibility of individual students (p. 3 of the 1975 District Procedures). This determination was to be based upon the report of the testing psychologist. In the first portion of the 1975/76 school year, Director Kieter signed the eligibility determination forms (also referred to as the B-1 form). This responsibility was delegated by Mr. Kieter to respondent Wieland in mid- December, 1975. Prior to this delegation, Mr. Kieter occasionally signatured some B-1 forms without having seen the psychological report. This was done because of a backlog in clerical assistance and processing, and to expedite the procedure. Mr. Kieter was assured by the school psychologists that if the B-1 form had been sent to him for execution, proper testing had been completed, the report was in the process of being written and the data was available. Simultaneous with the time that the authority to sign B-1 forms was delegated to Dr. Wieland, Mr. Kieter issued a memorandum to all school psychologists stating that B-1 forms without the completed psychological report attached thereto would no longer be entertained. In the Fall of 1975, Mr. Fisher communicated with Director Kieter concerning the absence of certain psychological data in the files of some ten to twelve students at Horizon Elementary School. Mr. Kieter instructed Mr. Fisher to make up any deficiencies in those folders. Mr. Kieter also discussed the folders with the principal of Horizon, Mr. Wallsworth. Other than this incidence, Director Kieter was not informed of any specific irregularities or abuses in the exceptional education program at Horizon during the 1975/76 school year. Mr. John Georgacopoulos worked in the Diagnostic Center as a psychometrist from 1969 to 1971, and at Horizon Elementary School as a guidance counselor in the school years 1974/75 and 1975/76. As a guidance counselor, he attended "staffings" or meetings with school psychologists pertaining to the placement of students in the various programs. He was also involved with the testing of students at Horizon. In the school year 1974/75 -- his first year at Horizon -- Mr. Georgacopoulos perceived that there were problems in the running of Horizon's exceptional student program. These problems included the misclassification of students, the placing of students into programs without certification and without proper testing, the nonexistence of programs for which children were certified and mimeographed certifications with the students' name placed thereon at a later time. Mr. Georgacopoulos informed Horizon's principal, Mr. Wallsworth, of these irregularities on numerous occasions during the 1974/75 school year. He also states that he discussed these problems with Mr. Fisher, Director Kieter and respondent Wieland. Both Dr. Wieland and Mr. Kieter denied being informed by Mr. Georgacopoulos of any irregularities at Horizon during the 1974/75 school year. According to Mr. Georgacopoulos, problems at Horizon continued in the 1975/76 school year. These included the misplacement of children, improper or inadequate testing of students, nonexistence of programs, inadequate data in student files and the lifting of signatures onto psychological reports. In March of 1976, Georgacopoulos obtained from Mr. Wallsworth's office a computer printout of students funded for the various exceptional education programs at Horizon. He then checked the files of these students both at the Diagnostic Center and at Horizon and found that many did not have case numbers assigned to them, that many contained inadequate or no data and that, for some students, files did not exist at all either at the school or the Center. In March of 1976, Georgacopoulos went to respondent's office and talked to respondent about the alleged irregularities existing at Horizon. It is difficult to discern from Georgacopoulos' testimony what specifics were related to respondent. It appears that Wieland was informed that children were certified as gifted when no gifted program existed at Horizon, that children were being placed in the wrong programs, that children were being placed without appropriate or adequate testing and that the information in the student files was inadequate. At the time of this discussion, respondent had a difficult time following Georgacopoulos' conversation. He appeared to respondent to ramble and to be upset and confused. Respondent felt that Georgacopoulos simply disagreed with the psychologists' reports as well as the contents of the gifted program. As a result of this conversation, respondent told Georgacopoulos that some information might be in the files at the Diagnostic Center and offered him the opportunity to check these files with the assistance of his staff. Georgacopoulos told respondent that he had discussed these irregularities with Principal Wallsworth. On May 27, 1976, Robert Lieberman, a school psychologist at Horizon, went to respondent's office and told him of irregularities that existed at Horizon. These included the lack of programs for gifted and emotionally disturbed students, the misplacement of certified children, inappropriate "staffing" of children, inappropriate and/or inadequate testing before placement and the pressures placed upon school psychologists to test and place numerous students within a short amount of time. Lieberman was concerned that he would lose his job at Horizon and Respondent told him to try to finish out the school year without sacrificing his professionalism. Dr. Wieland also offered to help him get an interview for a job at the county level. Sometime between May 27th and June 9, 1976, Ms. Queen Sampson, a school psychologist from the area office, talked to respondent and confirmed the statements made by Georgacopoulos and Lieberman. On June 9, 1976, respondent again discussed the irregularities at Horizon with Mr. Georgacopoulos. During this conference, Mr. Georgacopoulos specifically placed the blame upon Principal Wallsworth and he was more emphatic and specific in his allegations concerning the irregularities. He also mentioned the falsification of psychological reports via the "lifting" of signatures, and stated that this had come to his attention in May of 1976. Respondent was aware at this June 9, 1976, meeting that Mr. Georgacopoulos was leaving the Broward County school system. Mr. Georgacopoulos testified that he had discussed specific irregularities at Horizon with Director Joel Kieter during the 1975/76 school year. Mr. Kieter denied that there had been any such discussions and testified that he had never even met Mr. Georgacopoulos prior to June 9, 1976. About an hour after talking to Mr. Georgacopoulos on June 9, 1976, respondent Wieland went to the office of William T. McFatter, Assistant to the Superintendent. He related that Georgacopoulos had made serious allegations against Mr. Wallsworth and asked for McFatter's advice. Mr. McFatter remembers that respondent mentioned the possibility of double funding and the qualification of students for the gifted program at Horizon. McFatter advised respondent to go straight to superintendent Mauer with the allegations. McFatter and respondent then went to the superintendent's office and a brief ten to fifteen minute meeting ensued. This was the last day of the school year for students and the superintendent was quite busy at this time. The possibility of double funding was an explosive issue to the Superintendent and this is the only irregularity he recalls having been mentioned by respondent on June 9, 1976. The superintendent immediately called a Mr. Cox, who deals with pupil accounting, and related to him his concern with double funding of students in the exceptional education program. Mr. McFatter, Mr. Mauer and respondent then went to the office of Mr. Cox and respondent Wieland was assigned the task of determining the existence or nonexistence of double funding. None was found and respondent so reported to Mr. Mauer. Subsequently, respondent and two other persons were assigned the task of auditing the records of the exceptional student program at Horizon. The auditors were unable to verify either the existence or nonexistence of certain records, forms and psychological reports for many students. It was clear that many files were incomplete and there was no evidence that either the gifted or emotionally disturbed programs existed at Horizon. Respondent Wieland explained the delay between the first March 1976, meeting with Mr. Georgacopoulos and his June 9, 1976, report to Mr. McFatter and the Superintendent as follows. Respondent (as well as others) classified Georgacopoulos as a "child advocate," and respondent felt at the March meeting that Georgacopoulos was merely expressing his disagreement with psychological reports and the contents of certain existing programs. During the March meeting, his allegations were general in nature and his discussion of irregularities appeared to ramble and be confusing. Respondent was more concerned with the demeanor of Georgacopoulos than with what he was saying. When Mr. Lieberman related similar and more specific irregularities, which were thereafter confirmed by Queen Sampson, respondent felt that disclosure of Lieberman's and Sampson's statements would be detrimental to their future employment with the school system. Upon confirming that Georgacopoulos was leaving the school system, respondent felt that the charges could be attributed to Georgacopoulos without injury to Lieberman and Sampson. He therefore had another conference with Georgacopoulos on June 9, 1976, and decided to seek advice from the Assistant to the Superintendent, Mr. McFatter. Various other events have transpired since June 9, 1976, concerning Horizon Elementary School exceptional education program irregularities. These include a letter from Mr. Georgacopoulos to the Superintendent, which letter appears to have instigated an investigation by the Security Office or the Internal Affairs Division. Such later events are not deemed relevant to the present charges against respondent.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be immediately reinstated to his former position and that any back salary be paid to him for the reason that the charges against him were not sustained by the evidence. Respectfully submitted and entered this 3rd day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: School Board of Broward County 1327 S.W. Fourth Street Ft. Lauderdale, Florida John B. Di Chiara DiGiulian, Spellacy, Bernstein, Lyons and Sanders Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33394 Robert M. Curtis Saunders, Curtis, Ginestra & Gore P.O. Drawer 4078 1750 East Sunrise Boulevard Ft. Lauderdale, Florida 33338
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 The issues are whether the conduct of the Respondent, an elementary school music teacher, justified a three-day suspension without pay on February 26, 27, and 28, 2008; and whether Respondent should be terminated from employment for conduct that constitutes misconduct in office, immorality, and/or incapacity.
Findings Of Fact James F. Notter, Superintendent of Schools of Broward County, Florida, signed the Administrative Complaint in this case on behalf of Petitioner, Broward County School Board (Petitioner or the Board). The Board operates public schools within the Broward County School District (the District). Respondent, Brian Duda, was employed as an elementary school teacher by Petitioner, Broward County School Board, and assigned to teach music at Sheridan Hills Elementary School during the 2007-2008 school year. Mr. Duda has taught school for a total of 29 years, 23 in Broward County. In addition to teaching music, Mr. Duda has been an elementary school classroom teacher. When Mr. Duda started at Sheridan Hills, in the 2004- 2005 school year, the principal was Christopher Pariso and the assistant principal was Deborah Freedman. Donald Fitz, who has been employed by the District since 1987, and for eight years before that in Pennsylvania, became the Sheridan Hills' principal in 2005, after Mr. Pariso retired. After Mr. Fitz was named principal, he received a letter from Mr. Duda saying he would not be returning to Sheridan Hills the following year. Mr. Fitz discussed Mr. Duda with Mr. Pariso who told him that Mr. Duda had served a one-day suspension related to anger management issues. When he did not receive a transfer to another school, Mr. Duda notified Mr. Fitz that he would, in fact, be returning to Sheridan Hills the following school year. Mr. Fitz and Ms. Freedman met with Mr. Duda and discussed his strength; he is an excellent music teacher; and his weakness, his need for anger management so that he is not "burning bridges." Mr. Duda was to seek help from Ms. Freedman when he felt the need for relief from his classroom or any other school setting to control his anger. The following year, Ms. Freedman left and Tara Zdanowicz became the assistant principal at Sheridan Hills. In a memorandum dated February 20, 2008, Mr. Duda was notified that the Board had approved Mr. Fitz' recommendation that he be suspended for three days. On April 11, 2009, Mr. Duda was notified, in the Administrative Complaint, that the Superintendent of Schools was recommending to the Board that his employment be terminated. In this proceeding, Mr. Duda challenged both actions. In the Amended Administrative Complaint, dated September 11, 2009, the disciplinary actions are, in relevant part, alleged to be justified based on the following: Specific Charges The Petitioner, James F. Notter, alleges as follows: Suspension Respondent, Brian Duda, humiliated and embarrassed a first grade student, W.J.R., in front of other students and parents at a school holiday show during the 2007-2008 school year. Specifically, W.J.R. arrived for the holiday show with his Mother, Grandmother, Grandfather, as well as his sisters, and approached Mr. Duda to take his place for the show. In the presence of others, Mr. Duda began to yell at W.J.R. causing him to cry at which time his family approached to see what was wrong. W.J.R.'s family then witnessed Mr. Duda continuing to yell at W.J.R. words to the effect that W.J.R. was banned from the holiday show and was supposed to have written in his journal and tell his parents that he was un-invited to the holiday show because he had acted despicable [sic]. Mr. Duda's actions embarrassed W.J.R. in front of his classmates and their parents. In this way, Mr. Duda violated his duty to protect students from conditions harmful to learning. W.J.R.'s mother took him and left the auditorium to prevent further humiliation and embarrassment to her son and family. Mr. Duda has been repeatedly counseled about his conduct with students, school personnel and parents and to conform his behavior, but he has failed to abide by these lesser disciplinary and counseling measures. Just cause exists for the requested relief as Mr. Duda's behavior is inexcusable under the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession, Rule 6B-1.006, Florida Administrative Code. WHEREFORE, based upon the foregoing, the Petitioner, James F. Notter, Superintendent of Schools, requests that the three (3) day suspension of the Respondent, Brian Duda, be upheld based upon the foregoing facts and legal authority. Termination Respondent, Brian Duda, creates and maintains a hostile, offensive and threatening environment for his colleagues as well as his students through his inappropriate conduct and behavior. Mr. Duda has been counseled repeatedly to correct his behavior but, he has disregarded such directives and continues his conduct undaunted. He disregards directives and continues a pattern of conduct that is demeaning and frightening to students and harassing and offensive to staff. Specifically, numerous colleagues, supervisors, students and parents complain that Mr. Duda makes offensive and harassing comments toward them. Mr. Duda's rude and hostile comments toward students would cause them to become visibly upset and create an environment which is not conducive to learning. Mr. Duda regularly exposes his students to ridicule and embarrassment. Mr. Duda's behavior prompted several student's [sic] parents to remove their children from Mr. Duda's class as a result of his actions. Examples [sic] of Mr. Duda's pattern of behavior is included herein. Mr. Duda made offensive comments mocking the death of a student's father asserting "That's what happens to white trash and he got what he deserved". Mr. Duda regularly exhibits rude and inappropriate behavior in class toward students. Mr. Duda told M.S. she was "bad just like your brother." When a student asked what "retarded" meant, Mr. Duda pointed to student S.R. and said she was "retarded". Michael Corva, S.R.'s teacher, found S.R. and several other students visibly upset after Mr. Duda's class as a result of such comments. Mr. Duda told B.O. to "shut up," and called A.G. "retarded" as well, simply because he didn't know the answer to a question. Additionally, Ms. Eaton witnessed Mr. Duda demean a fifth grade class by telling them that they should be in Pre-K or Kindergarten, or that they should be wearing diapers. Mr. Duda was rude and demeaning to student M.S., when she simply told him it was her birthday. He responded "Well, that doesn't make you special. Sit down." Mr. Duda further demeaned her by then ordering her to sit alone in the back of the classroom. At the end of class, M.S. was discovered by another teacher sitting alone in the back of the room with her jacket over her head. M.S.'s parents subsequently demanded their child be removed from Mr. Duda's class. Mr. Duda threatened Tara Zdanowicz, Assistant Principal, upon being denied a letter of recommendation by responding "Okay, well if I'm here next year, things aren't going to be good. This is going on my list of things. I better not run into Mr. Fitz in Wilton Manors with my friends." Staff has further witnessed inappropriate interactions with Mr. Duda concerning his conduct, anger management and verbal statements which cause concern for the welfare of the staff and students. For example, Mr. Duda told staff that his friends had "heard enough and . . . if they ever saw Mr. Fitz out they'd kick his ass". Mr. Fitz is the school Principal. Mr. Duda further embarrassed, humiliated, and demeaned a parent volunteer by telling her "Why don't you go get a job at Publix? At least they pay you there," while she was volunteering in another class. This parent subsequently removed her child, C.F., from Mr. Duda's class because Mr. Duda would be offensive to her, and she did not want her child exposed to this type of conduct at a crucial age. Mr. Duda's actions further made the student C.F. so frightened and uncomfortable that when Mr. Duda would walk into the library, C.F. would try to avoid an encounter with him by hiding. Mr. Duda embarrassed and humiliated Steven Briggs, a seven year employee of the School Board, and Mary Harris, office manager and confidential secretary to the Principal of Sheridan Hills, by yelling at them prior to the start of the Christmas/holiday show saying "you people in the back. You adults. I don't want to hear anything out of you either." This comment drew the attention of everyone in the cafeteria whereby Mr. Briggs and Ms. Harris left and did not watch the show. Similarly, Mr. Duda yelled at and demeaned a teacher arriving with the class for a school show by yelling in front of the whole school that "You are supposed to be here at 9:00. It is 9:02. I should not let you come to this concert." Mr. Duda caused a coworker, Kathleen Treado, a twenty year employee, to cry upon yelling and berating her for inquiring as to what was wrong when she heard Mr. Duda yelling at the library clerk. Mr. Duda yelled to Ms. Treado "It's none of your business Kate Treado." Mr. Duda further humiliated and demeaned Ms. Eaton by stating, "You're off today. You're not taking your pills." Similarly, Mr. Duda stated to staff that Mrs. Fletcher, president of the Parent Teacher Association (PTA), " . . . is nothing but trailer trash, and so is Debbie Corriveau". Mr. Duda also told staff that other staff and parent volunteers at Sheridan Hills, were "white trailer trash". Mr. Duda has also harassed Mabel Gutierrez-Sangal, a fifteen year paraprofessional at Sheridan Hills, with continuous comments to her about her clothes being inappropriate. Mr. Duda also threatened to kick her out of his class if she attempted to enter his classroom. Ms. Sangal felt threatened and uncomfortable and reported the incident to the Principal Donald Fitz. Mr. Duda further demeaned pre- k students, in front of Ms. Sangal, during lunch by stating "Okay little ones, Please eat your government lunch biscuit" while adding that they should not let Ms. Sangal eat their pizza. Mr. Duda was hostile and threatening toward Ms. Corriveau, by approaching her and sticking his finger an inch from her face and accusing her class of being loud. Rhonda Lane, an eleven year employee, witnessed this "highly inappropriate" interaction. The School Board has taken lesser corrective measures by repeated counseling of Mr. Duda to correct and conform his behavior but he has failed to abide by such counseling and lesser disciplinary measures. The conduct described, the Amended Administrative Complaint concluded, constitutes, in Count I, Misconduct in Office; Count II, Immorality; and Count III, Incapacity. Collective Bargaining Agreement (CBA) Record-keeping requirements and procedures for handling complaints against employees of the District are governed by a CBA negotiated between the Board and the Broward Teacher's Union (the Union). The CBA, in relevant part, provides: E. Personnel File- Access and Security Number of files: There shall be no more than two (2) personnel files maintained for each employee. The official file will be maintained at the district personnel office. In the event two (2) such files are maintained, one (1) shall be kept in the principal's or director's office at the school or other location where the employee is then employed. Each document placed into the employee's file maintained in the principal's or director's office shall be duplicated and the original transmitted to the district Personnel Office for inclusion within the employee's file maintained at the district Personnel Office . . . . Entries log: Each personnel file shall contain a form titled "Log of Entries" to include all of the following information regarding certificates, commendations, assessment documents, disciplinary matter and complaints placed in the files: (1) a brief description of the time; (2) the date shown on the item; (3) the date the item was first placed in the file; and (4) the identification of the source of the item. * * * Investigative File: The file established by the district as a result of any investigation of an employee is not one of the two personnel files listed above. Access to a file dealing with an investigation shall be in accordance with the provisions of Florida Statute 1012.31. If the preliminary investigation is concluded with . . . no disciplinary action taken or charges filed, then the district will ask the Department of State . . . for permission to destroy the . . . file. Notification to employee: Items may not be placed in an employee's official personnel file unless the item has been made known to the employee, pursuant to the methodology described in Florida Statute 1012.3l(2)(c) . . . CBA, Article 18(E)(1), (2), (4), and (5). The CBA also provides for handling complaints as follows: Complaints on Employees: No action against an employee shall be taken on the basis of a complaint by a parent or student or other individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her principal. CBA, Article 18(B)(2). At various times during the school year when teachers, parents, and students complained about Mr. Duda, Mr. Fitz would have them put their complaints in writing. He did not provide copies of the complaints to Mr. Duda but maintained them in a correspondence file. Respondent's position is that the "correspondence file" was a separate third "personnel file" maintained in violation of the terms of the CBA, and that, as a consequence, no disciplinary action may be taken against Mr. Duda. That position ignores Article 18(E)(4) of the CBA that allows information to be collected in an investigative file. Respondent also maintains that Mr. Fritz should have given him copies of the written complaints that he was collecting. Diane Watts, the field representative for the union who was assigned to assist Mr. Duda, agreed with Mr. Duda that employees should be notified of complaints immediately, although the CBA has no specific time limit. Ms. Watts confirmed that an employee does not have to be given copies of written complaints. According to the requirements of the CBA, a principal or supervisor who gets a complaint about an employee should not put the complaint in the personnel file, but should keep it separate and forward it with a request for an investigation to the District's Special Investigative Unit (SIU). It is the SIU that notifies the employee in writing of the complaint and conducts the investigation, but the SIU is also not required to give the employee copies of the actual complaints or any written or recorded statements taken during the course of the investigation. With a union representative present, the employee has an opportunity to give his or her own statement. At the conclusion of an SIU investigation, a written report summarizing allegations and statements must be provided to the employee, but again not the written complaints. The employee, with a union representative, has another opportunity to appear, this time before the Professional Standards Committee. If further action is recommended, a pre-disciplinary conference allows the employee, with a union representative, to have additional input. Mr. Duda had both a union representative and an attorney present at a pre-disciplinary conference. As confirmed, the CBA procedures were followed in Mr. Duda's case. She accompanied him throughout the process and never filed a grievance concerning the manner in which the matters were conducted. Ms. Watts confirmed that it would have been a violation of the terms of the CBA if Mr. Fitz had placed complaints in Mr. Duda's personnel file before and during the investigation. She said the SIU process unfortunately can take an "awfully long time" meaning up to "over a year." In this case, Mr. Duda was removed from a teaching position and reassigned to a District office in August 2008, but the first Administrative Complaint to terminate his employment was not filed until April 2009. There is only one exception to the requirement that complaints not be placed in the personnel file until the investigation has been completed: that is for minor matters that a principal may resolve internally with a letter of reprimand. In each instance of discipline at issue here, Mr. Duda was notified in writing of the recommendations and reasons given to the Board by Mr. Fitz, who recommended suspension, and subsequently by the Superintendent, who recommended termination. There was no violation of the CBA in the procedures to impose discipline. Therefore, the CBA does not prohibit further consideration of the allegations in the Amended Administrative Complaint, based on the provisions related to personnel files and written notice. The additional requirement of an opportunity to discuss the matter with his principal was also met based, in large part, on the testimony of Mr. Duda himself. See, for example, Findings of Fact 24, 32, 43, 45, 49, and 50. Mr. Fitz also kept an Entry Log in Mr. Duda's personnel file that Mr. Duda conceded was correct. Mr. Fitz gave Mr. Duda "satisfactory" ratings on the Instructional Personnel Assessment System (IPAS) at the same time he was collecting complaints to refer to the SIU. He was instructed by Cathy Kirk, the District's Evaluation Coordinator, and Loreen Calhoun, of Employee Relations, not to address possible disciplinary issues in the IPAS, although he did write a comment about the need for anger management on one IPAS. Amended Administrative Complaint Paragraph II.A.a. On December 6, 2007, W.J.R. was a first grade student at Sheridan Hills. Based on his description of W.J.R.'s behavior earlier in the day as "despicable," Mr. Duda apparently told a substitute teacher for W.J.R.'s class to write in his agenda/planner for his parents to see that he was being excluded from the holiday show that night. All parties agree that W.J.R. was humiliated, embarrassed and in tears. He had been excited that he was going to be in the holiday show, got all dressed up, and was accompanied by his mother, grandparents, and sisters. As they entered the music room, Mr. Duda yelled from the back of the room that W.J.R. should not be there. Mr. Duda testified that that the grandmother called him a "jackass." W.J.R.'s parents and grandparents found Mr. Fitz and complained about Mr. Duda, and then left the school before the program. Mr. Fitz was concerned because Mr. Duda was "in one of those moods [and had previously] declined to follow through with the [spring] concert and . . . I had to get someone outside of our school to carry through for the rest of the spring concert rehearsal." To calm things down, Mr. Fitz asked the parent to come see him the next day. He also called Ms. Zdanovicz, the assistant principal, who was on her way to the school, to ask her to get there quickly to help calm Mr. Duda because she had a better relationship with him. The following day Mr. Fitz met with the family of W.J.R. and received a written statement from his mother. Mr. Fitz also met with Mr. Duda concerning the incident. Mr. Duda testified unconvincingly that Mr. Fitz only discussed the incident by "briefly ask[ing] what happened . . . ." With Ms. Watts, Mr. Duda attended a pre-disciplinary conference on January 25, 2008. Eight-year-old W.J.R. was "sad" when "[Mr. Duda] yelled at me and said I was not supposed to be there." Christopher Falzone, the after school program director, who was there to help with the concert, confirmed that Mr. Duda was eye-level with the child, as Mr. Duda said, but that he was very loud and angry. He was pounding his fists, and causing a scene in front of other children and parents. In a memorandum dated January 31, 2008, Mr. Fitz notified Mr. Duda that he was recommending his suspension for three days without pay because: ". . . you lost your temper in front of students and parents while exhibiting conduct unbecoming a teacher. This is in violation of the Florida State Department of Education's Code of Ethics Rule 6B-1.001(2) that states, 'The Educator's primary concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.'" Mr. Fitz found that Mr. Duda's conduct violated Florida Administrative Code Rule 6B-1.006(3)(c), which states "[an] [o]bligation to the student requires that the individual shall not intentionally expose a student to unnecessary embarrassment or disparagement." The memorandum also advised Mr. Duda of his right to file a grievance and to schedule an informal discussion with a union representative present within 15 working days of the date of the memorandum. No grievance was filed and the Board approved the recommendation for suspension and provided written notice of that decision to Mr. Duda on February 20, 2008. Based on Mr. Duda's behavior at the hearing, Mr. Fitz is credible in saying that Mr. Duda laughed and said that "his mother was going to make up the difference in pay" for the three days. The fact that Mr. Duda did not take seriously the inappropriateness of the manner in which he handled the incident with a first-grade child was reinforced by his insistence, at hearing, that he had the authority to exclude anyone he wished from the program. The factual allegations in Paragraph II.A.a. of the Amended Administrative Complaint are proven. Amended Administrative Complaint Paragraph II.B.b. Lynn Eaton, a pool substitute teacher at Sheridan Hills, was sorry to hear that a father of three, including two who were students at Sheridan Hills, was killed in a boating accident. It was reported all over the news that the accident was alcohol-related. Mr. Duda said, "Oh, did you hear what happened to Mr. [B] drinking and being drunk and getting killed in a boating accident . . . That is what happens to white trash when they drink and drive a boat." After attending the funeral, thinking about the comment over the weekend, and still being upset about it, Ms. Eaton reported the comment to Mr. Fitz and put her complaint in writing. Mr. Duda testified that what he said was, "Thank God he did not get behind the wheel and kill an innocent person on the road." He denied calling Mr. [B] "white trash" or saying "he got what he deserved." Mr. Duda's testimony that he did not use the expression "white trash" is not credible due to evidence of other incidents when he reportedly used a similar expression about a PTO volunteer and another teacher. Giving him the benefit of the doubt and referring to Ms. Eaton's written statement, at the time of the incident, quoting Mr Duda, he said "that is what happens to white trash but he felt very sorry for the children." There is inadequate evidence to support a finding that he also said "he got what he deserved." Mr. Duda conceded that he was confronted about the incident, when he said he and Ms. Eaton did not speak to each other for some time after that. The factual allegations in Paragraph II.B.b. are proven, in part. Amended Administrative Complaint Paragraph II.B.c. and II.B.d. Mr. Duda acknowledged that he told student M.S. that she was "bad just like her brother" in front of her classmates. He berated M.S. for having a birthday crown or hat on her head. Saying she was not special, he made her take it off. Mr. Duda said he was adhering to the school policy of no hats and believes that "floppy things" on the hat interfered with her music lesson, although what he interpreted as the strict no-hat rule is waived for birthdays and some children do wear Burger King cardboard crowns on their birthdays. When M.S.'s teacher came to get the class from music, M.S. was sitting in the back of the classroom crying with a hooded jacket over her head. Her mother said M.S. told her she felt uncomfortable with Mr. Duda and, as a result, she had M.S., a straight-A, gifted student, removed from music class. Mr. Duda pointed at student S.R. and said, "speaking of retarded." K.M., another student in the class, heard Mr. Duda call S.R. "retarded" or "stupid" in the course of teaching a class about a musical term. Her testimony is consistent with that of S.R. and Mr. Duda that he was teaching about the musical term ritardando, which means to slow the tempo of music. He compared slow tempo to a slow mind, but denied that he made any reference to or stared at S.R. or any other student. Mr. Duda's demeanor at the hearing lends credence to the students' testimony. The testimony of S.R. and K.M. was confirmed by that of S.R.'s classroom teacher, Michael Corva. S.R. and other students in his class informed him that Mr. Duda called S.R. "retard." He also saw that she obviously was upset when he picked up his class from music. The students told him that Mr. Duda was "mean" to them. Saying that she did not want to get anyone in trouble, specifically not Mr. Duda, S.R. would not go to the office to report the incident, but Mr. Corva did in a written statement he gave to Mr. Fitz. Student A.G. also was upset when Mr. Corva picked up his class. A.G. testified that Mr. Duda was explaining something like "retardo" and called some of the students retarded, including himself and S.R. The evidence supports a conclusion that Mr. Duda, at a minimum, implied that S.R. and A.G. were retarded by the way he pointed or looked at them while teaching a lesson on the musical term ritardando. No evidence was presented concerning the allegation in Paragraph II.B.c. that Mr. Duda told student B.O. to "shut up." Ms. Eaton overheard Mr. Duda tell students that they should be in diapers. Mr. Duda denied ever telling students they belonged in diapers. Of the two, Ms. Eaton was by far the more credible witness. With the exception of the allegations related to student B.O., the allegations of Paragraph II.B.c. and d. have been proven. Amended Administrative Complaint Paragraph II.A.b. and II.B.a., e., and j. After she came to Sheridan Hills in Mr. Fitz's second year as principal, Assistant Principal Zdanovicz was the person who, like Ms. Freedman before her, was assigned to help Mr. Duda by relieving him whenever he felt he was losing his temper. As Mr. Fitz counseled Mr. Duda repeatedly and, especially, after his three-day suspension, Mr. Duda refused to talk to Mr. Fitz and would only deal with Ms. Zdanovicz, although she made it clear to him that she was reporting their conversations to Mr. Fitz. In June 2008, Mr. Duda was seeking a transfer to another school. He asked Ms. Zdanovicz to write a letter of recommendation for him. When she refused the request, Mr. Duda became agitated and started "ranting and raving" in an open area of the front office. In one conversation that she had with Mr. Duda, Ms. Zdanovicz was concerned that he was making a threat on the life of Mr. Fitz. In his testimony, Mr. Duda confirmed that, referring to himself and his friends, he told Ms. Zdanovicz, "If we ever see that son of a bitch out in Wilton Manors, we would kick his fucking ass." Ms. Zdanovicz took it seriously, in part, because Mr. Fitz lives in Wilton Manors. Explaining why his friends were involved, Mr. Duda said it was because they heard him complain regularly about the way Mr. Fitz treated him. It is implausible, therefore, to conclude that, as Mr. Duda testified, he was not being advised regularly by his principal of complaints about his behavior. Ms. Zandovicz testified, "Whatever the outcome of this I do fear for myself and Mr. Fitz and the other people at our school. The allegations in Paragraph II.A.b. and II.B a., e., and j. have been proven. Amended Administrative Complaint Paragraph II.B.a. and f. Mr. Duda told G.F., a PTO parent volunteer, "Go get a job at Publix. At least they pay you there." When her child, C.F., was in third grade, C.F. began to complain of feeling ill on the days for music classes. When confronted by her mother, C.F. told her that Mr. Duda was mean to her and made her feel uncomfortable. At her mother's request, C.F. was taken out of music class. Kate Treado, the Sheridan Hills media specialist, reported that C.F. needed to be reassured about her safety after she noticed her hiding behind the stacks whenever Mr. Duda came in the media center. Mr. Duda acknowledged making the comment about Publix, but said he was joking with G.F. and had no ill intent. Mrs. F. said she was offended but tried not to be confrontational. Claiming that he and Mrs. F. were friends and that he did not know why C.F. was removed from music class, Mr. Duda testified that he approached Mrs. F. and asked "what happened," and she said she did not want to talk to him. In response to accusations from M.S. and C.F. that he glared at them or otherwise intimidated them after they were removed from his class, Mr. Duda said, "No. There had been enough trouble when they were removed from my class. I have 623 other kids to worry about. If they don't want to be in music, fine." At another time, he conceded that he knew their removal from his class reflected negatively on him. When asked, on cross-examination, "What trouble had there been relating to their removal?," Mr. Duda said, "I don't know what you are referring to. I don't recall saying that." Another parent, D.L.R., asked to have her son, D.B., removed from music class. D.B. accused Mr. Duda of grabbing his shirt. After Mr. Fitz randomly chose children in the class to interview, he concluded there was no evidence to support D.B.'s claim and he told Mr. Duda, "[D]on't take it any further." In direct violation of that directive, Mr. Duda said D.B. came in with hoodie over his head, and he "professionally would not let a kid sit there curled up like that, afraid to look at me." So, he said "[D.B.], I'm not upset with you. I'm just disappointed." D.B. said "[Well, you did it." Mr. Duda responded, "Oh, Oh, we are not going there." He asked which children had been interviewed, and gave them rewards called "flip-its" for "telling the truth." Mr. Duda admits being advised that Mr. Fitz considered his behavior unacceptable, saying he "chewed" him out. The allegations in Paragraphs II.B.a., d., and f. have been proven. Amended Administrative Complaint Paragraph II.B.g. Mr. Duda made comments in a cafetorium filled with children and parents attending one of the holiday programs, to chastise teachers in the back for having a "teacher conference going on." He was speaking to Steven Briggs and Mary Harris who complained that the comments were directed at them. Mr. Duda claimed to be joking with and looking only at Debbie Corriveau. Mr. Briggs' testimony that Mr. Duda directed the comment to him and Ms. Harris is supported by a contemporaneously written statement dated 12/7/07. Mr. Briggs also observed and reported that Mr. Duda chastised one teacher, in front of the entire assembly, for bringing her class in at 9:02 a.m. instead of 9:00 a.m, saying he should not let them attend. Media specialist, Kate Treado, confirmed that Mr. Duda got very tense about the time for performances, including often threatening to exclude children from performing, and once telling children and parents who had gathered early in the media center that they could not attend a performance that evening. Mr. Duda attributed this action to his concern for overcrowding. The allegations in Paragraph II.B.g. of the Amended Administrative Complaint have been proven. Amended Administrative Complaint Paragraph II.B.h In September 2007, Cheryl Fogarty, a media clerk at Sheridan Hills, was verbally and loudly criticized by Mr. Duda for leaving bubbles in his laminating project and was in tears by the time he left the media center. Ms. Treado heard what was happening, walked in and said "good morning" to Mr. Duda. Although the media clerk works under Ms. Treado's supervision, Mr. Duda told her what was going on with Ms. Fogarty was none of her business. On another occasion, Mr. Duda became angry with Ms. Fogarty because he thought she was taking laminating projects out of order and that he reported that to the assistant principal. He said his work was on top at 7:00 a.m., but he saw other work on top of his at 7:30 a.m. Mr. Duda agreed referred to Ms. Eaton regularly for years as a "lovable crazy old bat," sometimes asked if she took her medication or had "silly pills", and laughed at her silly clothes, but Ms. Eaton was not offended and said she did wear silly outfits to entertain the children. After she made the complaint about his comments regarding the death of the parent, Mr. B., however, their joking relationship ended and they stopped speaking for a while. After school program director, Christopher Falzone, testified that Mr. Duda referred to another teacher and a parent as "white trash." Mr. Duda denied that he made the comments, but Mr. Falzone and Ms. Eaton are more credible with independent memories of Mr. Duda's having used the same expression on separate occasions. Based on the evidence, it is found that the allegations in Paragraph II.B.h. are proven. Amended Administrative Complaint Paragraph II.B.i. There is no evidence to support the allegations concerning Mabel Gutierrez-Sangal. Mr. Duda testified that he was upset that Ms. Corriveau's class was, in his opinion, too loud and that the noise was disturbing another teacher's class where he was helping proctor the FCAT administered in March 2008. Mr. Duda spoke to Ms. Corriveau about it and, because he thought she was being sarcastic when she said, "okay, Mr. Duda, okay," he turned back towards her to say it was not a joking matter and to chastise her further. Mr. Duda was rude, inappropriate, and he spoke to her as if he were reprimanding a bad child. After the incident, Ms. Corriveau told Mr. Duda she had never been spoken to that way in her life and avoided him. Summary of Findings: The terms of the CBA were not violated in the procedures that led to either the three-day suspension or he proposed termination of Mr. Duda. Disciplinary actions, if otherwise appropriate, are not barred by the terms of the C.B.A. The factual allegations in Paragraphs II.A.a. and II.A.b. of the Amended Administrative Complaint, in support of the suspension, have been proven. The factual allegations in Amended Administrative Complaint Paragraphs II.B.a., b. (in part), c. (in substantial part), d., e. (in substantial part), f., g., i. (in part), and j. have been proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board issue a final order upholding Respondent's suspension and terminating his employment with the School Board. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of December, 2009. COPIES FURNISHED: Carmen M. Rodriguez, Esquire Carmen Rodriguez, P.A. 15715 South Dixie Highway, Suite 411 Palmetto Bay, Florida 33157-1884 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 James F. Notter, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale 33301-3125 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether there is just cause to terminate Paula Sinclair's employment with the Broward County School Board based upon the allegations made in its Administrative Complaint dated July 9, 2015.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Sinclair started her employment with Petitioner in 2007. She was employed as a guidance counselor pursuant to a professional services contract. Sinclair has a Florida Educator's Certificate and received a bachelor's degree in youth and community studies from Surrey University in England, a postgraduate diploma in social work and criminology from Middlesex University in England, and a master's degree in school guidance counseling from Nova University. Sinclair was a guidance counselor at Walter C. Young Middle School for the 2007-2008 school year. The following school term, 2008-2009 school year, Sinclair transferred to New River Middle School and held the position of a guidance counselor. 2009-2010 School Year Sinclair was placed at Indian Ridge Middle School ("Indian Ridge") for the 2009-2010 school year. She was assigned as the eighth grade guidance counselor. On August 3, 2009, Assistant Principal Michael Lyons ("Lyons"), and Busjit-Bhalil ("Busjit"), guidance counselor, met with Sinclair to explain her duties and responsibilities. Indian Ridge opened for the school year on August 25, 2009, and Sinclair started getting parent complaints about her performance. She also started making scheduling errors. On August 27, 2009, Sinclair had her first conference with Lyons. On August 28, 2009, Lyons had a second conference with Sinclair regarding her scheduling being taken over by Busjit because Sinclair was either not completing the work or the work was not timely done. On September 2, 2009, Lyons set a meeting for September 8, 2009, with Sinclair, Busjit, and Zagari to discuss Sinclair's job performance because Sinclair had made numerous mistakes. On September 3, 2009, Sinclair placed an eighth grade student in a seventh grade course. On September 11, 2009, Lyons met with Sinclair and outlined Sinclair's major areas of job performance concerns. Scheduling, poor communications with parents, inability to provide accurate information, and failure to read and respond to emails in a timely manner were addressed with Sinclair. Lyons set up a cycle of assistance to provide Sinclair the help she needed to bring her performance up to District level. Lyons also provided Sinclair training. He directed Sinclair to work with the following co-workers to get specific training in the different areas she needed improvement: Busjit, to review all guidance functions and duties, scheduling practices, procedures and protocols; Nancy Bourbeau ("Bourbeau") for TERMS1/; Susan Perless ("Perless") in regard to ESE students; Brown for best practices with parents and to read CAB system emails daily, as well as formulate a record-keeping system for phone communications. During the meeting, Sinclair responded by staring silently at Lyons. Sinclair was provided two weeks to correct the performance deficiencies. On September 15, 2009, Lyons followed up the meeting discussions from September 11, 2009, with a memo to Sinclair outlining the serious concerns regarding her job performance. The memo deemed the following areas substandard: Students being placed in double reading classes that are not designed for being double blocked. Placing 8th grade students in 7th grade classes. Placing advanced students in regular education classes. Providing only 5 courses for students when they should have 6 courses. Wrong team designations on student schedules. Incorrect course and section numbers on student schedules. Interacting with parents in a curt manner. Failure to return phone calls from parents. Providing wrong or inadequate information to parents. Failure to follow direction in formulating a new algebra class. Failure to notify impacted teachers of schedule changes. Failure to process schedule changes in a timely manner. Failure to open and read emails in a timely manner. A general lack of "Withitness" in regard to school matters. On September 15, 2009, Busjit started Sinclair's training on TERMS panels. She reviewed the differences among the intensive reading classes and processes for accessing the server and database. On September 16, 2009, Bourbeau, data management specialist, trained Sinclair on TERMS and scheduling. Bourbeau went through every panel guidance counselors needed to know and discussed the procedures of a schedule change, as well as how to create a new schedule. On September 22, 2009, Perless, ESE specialist, reviewed the different roles in ESE with Sinclair, went over the panels in TERMS, and discussed the role of guidance in the area of ESE. After Sinclair received the training and assistance, her performance did not improve at all. She was inept in performing scheduling tasks and continued to assign students to the wrong class. Busjit continued to instruct Sinclair numerous times on the process of scheduling students properly. On December 4, 2009, Lyons discovered the physical education ("PE") waivers2/ were not completed. Lyons provided Sinclair a directive to ensure that all students in need of a PE waiver have one by December 18, 2009. Lyons first instructed Sinclair to perform the task by August 28, 2009, previously extended the deadline to November 13, 2009, and addressed the issue again on November 16, 2009. On or about December 4, 2009, a conference was held with Sinclair, which was detailed in a summary of conference memo dated December 8, 2009. The memo detailed that Sinclair would continue to receive assistance to help improve her performance, but if her performance did not improve, she would be placed on a Performance Development Plan ("PDP"). The next day Sinclair was absent from work. On December 18, 2009, Lyons wrote a memo to Respondent concerning her excessive absenteeism and requested Sinclair to provide a doctor's note justifying her absences since December 9, 2009. On December 19, 2009, Sinclair produced a Return to Work Certificate from Dr. Alvarez ("Alvarez") with a return date to start during the school holiday period, December 21, 2009. On or about January 15, 2010, Sinclair reported that she was taken to the emergency room the previous evening and filed for Family Medical Leave ("FMLA") requesting 12 weeks of leave from work. The request was accompanied by a Certificate of Health Care Provider and stated Sinclair had been treated by Alvarez since 1997 and was unable to perform her duties. On January 15, 2010, while out on FMLA, Sinclair applied for a hardship transfer to another school for the 2010- 2011 school year. On February 19, 2010, while on leave Sinclair also filed a discrimination charge against Lyons and the principal, which was denied. Upon Sinclair's return to work, her inability to perform her duties continued, and she made repeated mistakes. Sinclair failed to submit the students' PE waivers and educational plans after repeated directives from administration. She also failed to complete the Florida Virtual students' list. Sinclair's work was substandard. She could not perform basic routine counseling functions of the job, such as the scheduling of students. Sinclair received a satisfactory performance rating in the Instructional Personnel Assessment System because Broward County Teachers Union contract prohibits any employee from getting less than a satisfactory without first being on a PDP. 2010-2011 School Year Sinclair transferred to Northeast High School ("Northeast") for the 2010-2011 school year. She was assigned the ninth grade and a third of the seniors, who were split between the three counselors. Lupita Wiggins ("Wiggins") was Sinclair's guidance director at Northeast. Before school started, Wiggins asked Sinclair if there were any areas she needed help with and Sinclair requested training in TERMS. Wiggins met with Sinclair at her home and went over TERMS with Sinclair. Wiggins also trained Sinclair about high school graduation requirements since Sinclair had previously worked in guidance at middle schools. Sinclair did not show up to work the first two weeks of school. When she reported to work, Wiggins started noticing that Sinclair was having difficulty in scheduling. In November 2010, Wiggins discovered Sinclair still had not moved the ESOL students from Mercier's class, which she should have completed near the beginning of the year. On January 4, 2011, Wiggins reviewed the process for scheduling students properly with Sinclair again. On January 21, 2011, Sinclair incorrectly scheduled Term 8 courses for Term 9. Sinclair never mastered TERMS and continued to make mistakes such as: placing students in the wrong classes for the wrong quarters, which caused teachers' rosters to be missing students; placing a freshman student in a 10th grade biology class; double booking a student; and placing a non-ESOL student in an ESOL writing class. On January 21, 2011, Wiggins requested a list of ninth graders who had below a 2.0 GPA. Sinclair provided Wiggins a list of seniors who either had been in Apex3/ and were rejected or already scheduled for Apex. Wiggins worked with Sinclair to try to help her understand how to schedule properly and spent over two hours explaining to Sinclair again how to look at the students' credits to determine the courses that they needed. On January 25, 2011, Sinclair supplied another wrong class in Apex by not providing the classes for fourth or second period Apex classes. On February 24, 2011, Sinclair made another scheduling error and the terms did not match up. Sinclair also scheduled one student for American History as a needed graduation requirement, but removed her out of another class needed as a graduation requirement. Wiggins sat down with Sinclair countless times to try to teach her how to schedule students properly. Sinclair continued to make huge errors. On March 9, 2011, Sinclair improperly removed a student out of Spanish II, the second part of the two-year foreign language mandatory requirement to go to a four-year university, and told the student she needed Geometry in the second semester for graduation. The student already had all of her credits for math. On March 28, 2011, Sinclair still had not fixed the TERMS scheduling error brought to her attention by Wiggins on February 24, 2011. Wiggins had to constantly go back and double-check and recheck Sinclair's work, as well as fix it or do it herself. Wiggins also received complaints from parents that Sinclair was being unprofessional and disrespectful. 2011-2012 School Year In the 2011-2012 school year, Sinclair returned to Northeast where her performance issues continued. On or about August 26, 2011, Sinclair was notified of five ninth grade students who she did not place in the appropriate reading class, and Sinclair was instructed to correct the scheduling. Subsequently, Wiggins checked the five students' statuses and Sinclair had only changed one student's status, which was still an incorrect placement. From September 12 to October 7, 2011, Wiggins reviewed Sinclair's senior letters. Thirty-five of them had erroneous information. One letter told a student he was on target for graduation and not on target at the same time. In another letter Sinclair detailed a meeting with a student, who had withdrawn two weeks prior to the meeting date. Sinclair continued to fail to perform her counseling duties. She was still unable to use TERMS, continued to improperly schedule classes for students, and could not evaluate transcripts. She even failed to assign students to core classes. On or about November 29, 2011, Sinclair went out on FMLA through January 3, 2011. Alvarez noted in her doctor's note that she needed to rest. Jonathan Williams became the principal at Northeast and decided to develop a PDP to address Sinclair's ineptitude. On April 24, 2012, Allan Thompson, assistant principal, notified Sinclair by memo that she had been absent since April 19, 2012, and he was unable to write her PDP. Therefore, the meeting was being rescheduled for April 30, 2012, "for the purpose of writing your PDP." Sinclair did not return to work on April 9, 2012, as scheduled. Instead, Sinclair applied for a leave of absence. Principal Williams signed the request but noted that he was in the process of developing a PDP for Sinclair. Sinclair's leave was approved and she was absent from April 9, 2012, through May 9, 2012. Sinclair requested another hardship transfer to another school while out on leave. The transfer was denied. A conference was scheduled with Sinclair to write the PDP on May 11, 2012, but at 7:00 p.m. on May 9, 2012, Sinclair wrote an email stating "due to illness, I will not be in until next week." Sinclair never returned to work in time to write the PDP and she did not receive an evaluation for the 2011-2012 school year because of her days on leave: she did not meet the minimum requirements to get an evaluation. 2012-2013 School Year Sinclair took personal leave for the 2012-2013 school year. Her request stated her reason was "to care for my 88 year old Aunt who is dependent on me for everything. She recently had a fall and is declining health." Sinclair did not receive an evaluation rating for the 2012-2013 school year because she was not in attendance and/or actively teaching one day more than half of the school year, which is the minimum requirement to be evaluated. 2013-2014 School Year In August 2013, Respondent came off leave from Northeast and was placed at Western High School ("Western") because an opening was available after a guidance counselor retired. Principal Jimmy Arrojo ("Arrojo"), assigned her to the ninth grade students since she had previously been a guidance counselor over ninth grade students. On August 7, 2013, Arrojo first met with Sinclair and treated the meeting as an entry interview trying to get to know Sinclair and transition her comfortably into her new position. Sinclair did inform Arrojo that she had previously been placed on a cycle of assistance. Arrojo explained to Sinclair that her job duties included counseling students, scheduling, reading transcripts, placement of students, dealing with problems that may occur, talking with parents, and setting up parent conferences. During the initial meeting, Arrojo provided Sinclair a list of immediate assignments due August 16, 2013. He instructed Sinclair to find the incoming ninth graders at risk report, look up ninth grade graduation requirements, and review her job description and highlight any areas where she thought she might have issues. Lauren Cohen ("Cohen"), Western's school counselor director, was Sinclair's supervisor assigned to guide Sinclair through guidance including registration, evaluating transcripts, and scheduling. In October 2013, Cohen started receiving emails and phone calls from parents requesting a counselor change from Sinclair. Parents would request verification of information Sinclair provided and other parents would report that Sinclair had not responded to them. Mary Jones ("Jones"), assistant principal over the guidance department, also became concerned with Sinclair's performance as a guidance counselor because Sinclair generated numerous complaints from parents and was making mistakes. Jones decided to provide Sinclair extra help to improve her work performance. Sinclair made numerous scheduling errors, improper class placements, as well as calculated incorrect grades and credits for the students assigned to her. Sinclair's errors and failures exposed her students to graduation mishaps. Sinclair also had attendance issues and Arrojo had several informal conversations with Sinclair to help her improve her performance. On December 19, 2013, a mid-year review meeting was held with Sinclair, Cohen and Jones. Sinclair's weaknesses with scheduling, including her inability to schedule students with TERMS, incorrect grades, discipline records, graduation requirements, and credits, were discussed with Sinclair during the meeting. Sinclair's failure and inability to perform her duties continued into 2014. Sinclair was still providing incorrect information to students, placing students in the wrong classes, and improperly evaluating transcripts. The School Board evaluates employee's performances with the Broward Instructional Developments and Growth Evaluation ("BrIDGES") system. The School Board uses iObservation to maintain the observation data. BrIDGES is mutually agreed upon by the School Board and Broward Teachers Union. BrIDGES has an evaluation tool for guidance counselors in sections J through R, which evaluates their day-to-day interactions and responsibilities. During evaluation observations, administrators record ratings based on numeric values that are averaged out based on the calculations that have been determined in the District. There are five different ratings based off of what is observed. Each rating has a numeric value. Innovating is worth 4 points, applying is worth 3 points, developing is worth 2.5 points, beginning is 2 points, and not using is 1 point. The points are averaged to come up with the Instructional Practice Score. Jones was trained on BrIGDES and iObservations. On February 22, 2014, Jones observed Sinclair's day to day activity. She also evaluated Sinclair's interaction with colleagues. Jones rated Sinclair beginning. On March 11, 2014, Jones conducted a meeting observation of Sinclair with an incoming ninth grade registration. During the meeting, instead of properly guiding the student and showing the student the course on the course card, Sinclair asked the student to find the course. Jones rated Sinclair beginning for the interaction since Sinclair did not demonstrate she knew how to map courses on the course card as she had been previously instructed and trained. On April 7, 2014, Jones was dissatisfied with Sinclair's timing and methods used to communicate information skills and rated Sinclair with beginning in the category of promoting positive interactions with students and parents for a classroom incident. The rating was for a parent meeting Sinclair had. She interrupted the instructional flow of the classroom and put a teacher on the spot by calling her during class and questioning her about the student instead of taking a message and facilitating communication between teacher and parent later. On or about April 9, 2014, Jones conducted a 30-minute formal observation of Sinclair's registration of a new ESE student. Sinclair showed up 30 minutes late to the scheduled conference and provided incorrect information about the course and credit. Jones rated Sinclair beginning for the observation because of the errors. On May 1, 2014, Jones assessed Sinclair's evaluation category for collegiality and professionalism, domain 4, and noted that Sinclair "identified ESE student and his needs during registration." She gave her a score of developing. Sinclair's performance as a guidance counselor at Western went up and down. Sometimes she did what was needed to be done. And, more often than not she scheduled students inappropriately. When Jones met with Sinclair to review issues, she would just stare at Jones and not provide an answer to her questions even if prompted and asked a direct question. Sinclair would reply with silence or reply "I don't recall." After her observations for the 2013-2014 school year, Sinclair ended up with an Instructional Practice Score 2.335, which showed she needed improvement. 2014-2015 School Year Sinclair started off the 2014-2015 school year needing to improve her Instructional Practice Score. The District provides support for employees with performance concerns. Tanya Thompson ("Thompson"), evaluation coordinator for the District, was assigned to Western to coordinate support for employees that receive a less-than- effective annual evaluation. Thompson's job is to provide assistance in rectifying the employee's performance deficiencies. Thompson started to assign Sinclair Nardia Corridon ("Corridon") as her fall peer reviewer to provide extra help and coaching, which would improve Sinclair's performance to the District level. However, Sinclair requested that she not get Corridon as her peer reviewer. For the 2014-2015 school year, Cohen oversaw the guidance department and met with all the guidance counselors periodically to address processes and issues. When Sinclair did not grasp the guidance counseling processes, Cohen started working one-on-one with her to explain and show her how each counseling duty should be done. Thompson assigned Gisella Suarez ("Suarez"), to Sinclair from the District as her peer reviewer after Sinclair notified Thompson she did not want Corridon. Suarez was assigned to coach Sinclair and help enhance her job performance. She did not serve as part of the assessment procedure or evaluation process for Sinclair. Even though Sinclair had a weekly peer reviewer, Cohen continued to provide Sinclair school-based support including extra meetings, and making sure that she sat down with her often to go over the different aspects of the counseling job including addressing parent concerns, following protocol for test materials, registering students, evaluating transcripts, scheduling, placing students, and Response to Intervention ("RtI).4/ Cohen documented her support meetings with Sinclair in coaching logs dated August 11, 13, 14, 22, 26, 28, 2014, September 2, 5, 9, 2014, October 29, 2014, November 4, 2014, and December 11, 12, 2014. On August 22, 2014, Suarez started coaching Sinclair and also documented her training sessions by coaching logs each time she met with her. When Sinclair met with Suarez, she shared her final evaluation from the previous year. Suarez used the evaluation to develop the session topics for coaching Sinclair. Suarez met with Sinclair weekly and focused her coaching sessions on all the areas of concern from Sinclair's evaluation. Suarez coached Sinclair on areas such as: contacting and communicating with parents, teachers, and students; facilitating educational planning in her office; and using counseling technology to help look up data on students. On or about August 28, 2014, Sinclair erroneously overrode the system and allowed a student to register for a higher math class because the parent wanted the student in the class. Sinclair should have verified that the class was appropriate by accessing the student's transcript or had the student tested before placing the student in a higher level math class. During the coaching sessions, Suarez would provide Sinclair additional resources to look at or ask her to log on to a database or go to a website. Repeatedly Sinclair did not follow through with the assistance and would inform Suarez that she did not have time. On or about August 31, 2014, the counselors were handling incoming registrations for private school transfers and middle school transfers prior to the start of the school year. Sinclair was not performing her share of registrations because she was not able to get into TERMS for a day and a half. Sinclair had to have her password reset. Jones rated her beginning for waiting a day and a half to gain access to the main working database, TERMS, and have access to check students schedules or appropriately place students. On September 9, 2014, Cohen reviewed RtI with Sinclair and showed her the website for the prevention office and all resources. They reviewed the use of technology on iObservation. Cohen also instructed Sinclair not to blame other counselors when working as a team. Cohen continued to receive numerous complaints about Sinclair not returning emails and phone calls to parents. While observing Sinclair, Suarez would also provide her feedback and suggestions to improve her interactions when she met with parents. Sinclair was generally receptive. However, Sinclair did not follow through with Suarez's suggestions. Sinclair struggled remembering her password to access BASIS, the web based guidance counselors' database to obtain the information for students. On October 6, 2014, Jones conducted a 30 minute formal observation during Sinclair's registration of a foreign student. Sinclair conversed with the student's uncle from the beginning of the meeting to the end about the student's registration without including or interacting with the student. Instead of letting the uncle convey the information to the niece and making her a part of the conversation, Sinclair repeatedly told the uncle, "you can talk to her about this tonight." Jones ultimately interceded in the meeting and pulled up InfoCat, a database utilized to identify foreign speaking students, to pair the new student with a student on campus that spoke the same home language and help transition the student. While coaching Sinclair, Suarez accessed Sinclair's skills with RtI and determined that she could not even go into the database even though she had been a counselor for over four years. Since Sinclair was responsible for RtI, Suarez provided Sinclair a Brainshark webinar from the District's counseling department to assist her in becoming proficient on RtI. The tool detailed the RtI process and included training on how to get on the system, initiate referrals, maintain data on interventions, and how to input information. On October 8, 2014, Suarez suggested that Sinclair register for the District RtI additional training. Sinclair attended the training. On October 10, 2015, Suarez met with Sinclair and used her coaching period with her to view the Brainshark RtI webinar since Sinclair still had not viewed it on her own time although Suarez had suggested it previously. Suarez had to log on to Brainshark because Sinclair could not access it. After the District RtI training and webinar training, Sinclair still struggled with RtI. She was still only able to get on RtI one time independently while with Suarez and continued to forget her password, although she would write her password down, and how to get on the system. On October 27, 2015, Jones observed Sinclair performing domains 2 through 4 and rated Sinclair developing because she did what she was supposed to do. On October 29, 2014, Cohen reviewed transcripts and test codes with Sinclair. Cohen met with Sinclair and went through the process and trained Sinclair again on how to enter grades and what assessment codes to use on a grade transcription sheet. When coaching Sinclair, Cohen had to repeat most topics multiple times. On November 3, 2014, Suarez and Sinclair watched a BASIS webinar to improve Sinclair's performance with BASIS. Sinclair took notes. Suarez also coached Sinclair on Virtual Counselor, a simple web-based program the District has where students, including middle school aged students, teachers and parents have access to student's grades and attendance. Sinclair also struggled with getting into Virtual Counselor and using the system. On November 20, 2014, Jones decided that it was about halfway through the school year so she would conduct an informal observation to see how Sinclair was doing. On December 11, 2014, Cohen met with Sinclair to review the previous assignment to put together a one page sheet with everything a ninth grader would need to know about semester grades including GPA, exams, and end-of-course classes ("EOC"). Sinclair's product did not contain the requested information and when asked to explain the document Sinclair could not explain it to Cohen. Cohen went over the components again and Sinclair took notes. Cohen ended the meeting by quizzing Sinclair. Cohen asked Sinclair if a student passed the nine weeks but failed the exam would they get credit. Sinclair looked at Cohen and would not answer. After being asked three times, Sinclair said no, which was the wrong answer. Cohen explained that Sinclair needed to learn, understand, and master how credits worked as part of her counseling job and she needed to be able to explain it to students properly. On December 12, 2014, Jones and Derek Gordon had a meeting with Sinclair and provided her a summary memo informing her that there were concerns with her job performance and a possible professional growth plan would be implemented. Jones summarized Sinclair's performance of November 20, 2014, informal meeting in the memo. Jones also rated Sinclair as not using for area L; beginning for area M; and not using for area N. The Post Observation Summary memo which stated: There was little interaction with parents during the parent meeting Resources were not provided to the parents No conclusions were drawn or action plan created following conference Based on my observation, I am concerned about your performance. I stated that I would provide you with assistance in order to assist you in improving your performance. I also encouraged you to continue working with your Peer Reviewer, Ms. Suarez. I also have had the opportunity to conduct observations this year. Based on those observations, a rating of beginning or not using have been given in the following elements: Use of Available Technology Participating in District and School Initiatives Supporting and organizing the Physical Layout of the Session Room Collecting and Analyzing Data to Develop and Implement Interventions Within a problem- Solving Framework Know and understand that if these deficiencies are not remediated, you may need to be placed on a Performance Development Plan. On December 12, 2014, Suarez also attempted to meet with Sinclair for their next weekly coaching session. Suarez's plan for the session was to review RtI again and to look at some technology resources for students. Sinclair did not respond to Suarez while she was in the office and finally stood up and opened the door showing Suarez out after approximately 20 minutes. Suarez responded requesting a date for their next coaching meeting the following week. Sinclair informed her she would get back to her. On January 8, 2015, Sinclair left Suarez a voicemail on her cellphone saying that she did not believe she needed her support any further. On January 9, 2015, Jones provided Sinclair a January 14, 2015, meeting agenda which listed topics to be addressed at the meeting, including at risk students, failing ninth grade students, RtI, goal-setting with ninth graders, transcript evaluation, and appropriate placement for scheduling. The email requested Sinclair to "please be sure to come prepared with a list of ninth grade students who have failed the first semester." On or about January 13, 2015, Arrojo met with Sinclair and addressed her attendance. He pointed out she had been absent 13 days and it was only halfway through the school year. He also informed her that she only had less than a day of sick leave left. Arrojo further explained that Sinclair had a pattern of non-attendance because most of the absences were tied to days off, a weekend or a vacation.5/ Arrojo questioned Sinclair about the absences four times and she did not respond or answer. Finally, Arrojo directed Sinclair to report to work on a daily basis and explained that Sinclair's numerous absences as guidance counselor caused problems for the guidance department because unlike a teacher who has a substitute replacement, the other guidance counselors had to pick up Sinclair's work when she was out. On January 13, 2015, Jones also sent Sinclair an email rescheduling the meeting time for January 14, 2015, at 1:30 p.m. On that same day, Sinclair incorrectly added classes for a student in Term 1 when it was second semester Term 2, and the student should have been added to Term 2. Each of the student's classes Sinclair scheduled started with a "1" which represents Term 1 instead of "2", which represents Term 2. On January 14, 2015, Sinclair reported to the meeting with the administrators at 1:30 p.m. and then excused herself to the restroom, came back at 1:45 p.m. and refused to answer any questions without a union representative. After she conferred with the union representative, the meeting began at 1:55 p.m. At the meeting on January 14, 2015, Arrojo observed. Jones requested that Sinclair provide the list of ninth grade at risk students that she had asked for previously on multiple occasions and instructed Sinclair to bring to the meeting for review. Sinclair refused to show the administrators the documentation she was holding in her hands or turn it over for review. It was explained to Sinclair that an accurate compilation of at risk students is important in order to determine which students out of the approximate 800 freshmen need extra help to graduate because credits are lacking, a low GPA, attendance issues, or discipline issues. Sinclair's previous reports on at risk students had varied from 21 to as large as 100. Jones had requested a copy of the list Sinclair was working off to review it for accuracy of criteria and properly identify the at risk students that needed plans formulated to help them. Sinclair would not respond to Jones several requests for the list even after she asked her directly. Sinclair just stared at the administrators with no response. Sinclair finally said 100 plus students were on the at risk list. Jones asked for the list a third time and Sinclair did not hand her the list. Jones asked Sinclair did she look on BASIS, the computer database that contains student data, including a tool that compiles list by areas at risk. Sinclair continued to stare blankly at Jones and not answer her. At some point in the meeting, Sinclair finally asked Jones, "does it matter what list?" Jones explained, "Yes, because on BASIS there's only 12 students and you're saying there's a hundred plus students." During the meeting, Jones tried to get Sinclair to open BASIS to look up the list. Sinclair was never able to open BASIS. Sinclair also failed to provide the strategies for at risk students or discuss interventions with Jones and Arrojo during the meeting. She just stared blankly at and through her supervisors. Sinclair never produced the list. At the end of the meeting Arrojo requested Sinclair leave the list that was in her hand but Sinclair just walked out. On January 14, 2015, Principal Arrojo also provided Sinclair a summary memo of the January 13, 2015, meeting and offered Sinclair employee assistance, which she refused. The memo provided expectations with the following directives: You are expected to report to work on a daily basis. This is an excessive amount of absences that has had an adverse impact on the operation of our school be reminded that attendance is an essential function of your job. All future absences will require you to provide a doctor's note verifying that you were ill. However, providing a doctor's note does not excuse an absence for which you have no accumulated sick leave. In order to try to prevent any students from falling through the cracks, Jones personally took the time to create the at risk list and discovered only 15 students were on the failure at risk list, not the 100 Sinclair claimed. On January 16, 2015, Sinclair received a pre- disciplinary meeting notice regarding insubordination. The letter detailed that Sinclair: refused to adhere to My directive to provide the list of at risk and failing 9th grade students that I requested and you refused to respond to inquiries regarding these students at a meeting held in Assistant Principal Ms. Missy Jones' office on January 14, 2015. During this pre- disciplinary meeting we will discuss your insubordination and failure to respond to inquiries regarding your students and your failure to turn in requested documentation. Prior to being placed on PDP Sinclair was provided District based support to see if her deficiencies could be corrected and job duties could be performed at an acceptable level. She received counseling notes, meetings with the guidance director, peer reviewer, and assistant principal. However, Sinclair was still repeating mistakes, not grasping basic guidance functions, making errors and not making progress with all of the support given. On January 23, 2015, Arrojo provided Sinclair a notice for a January 28, 2015, at 9:00 a.m. meeting "for the purpose of writing your Performance Development Plan." On January 28, 2015, Sinclair reported to Western. Arrojo was waiting for her in his office to meet and she left the school grounds around 8:00 a.m. Sinclair's union representative showed up for the meeting and was not aware Sinclair had left the school premises. On January 28, 2015, a memo was provided to Sinclair from the pre-disciplinary meeting held on January 23, 2015, which stated: [R]efused to respond to inquiries regarding your students and your refusal to turn in requested documentation, I have decided to issue you a Verbal Reprimand. Effective immediately, you are to fully answer all inquiries and you will provide an/all requested documentation from your supervising administrator/s. That same day, Arrojo wrote Sinclair another meeting notice, which she ultimately refused to sign, directing Sinclair to report to his office February 2, 2015, at 1:00 p.m. for the purpose of writing her PDP. Sinclair called out on February 2, 2015. On January 29, 2015, a transfer of support meeting was held. Sinclair requested Corridon to be her peer reviewer instead of Suarez because she had a guidance counselor background. Corridon met with Sinclair and discussed the areas of support needed. On February 2, 2015, Arrojo wrote Sinclair a third meeting notice in an attempt to set up a meeting on February 5, 2015, at 12:30 p.m. for the purpose of writing her PDP. On February 5, 2015, a PDP was created for Sinclair. Sinclair was informed that her Instructional Practice Score was 1.898, in the unsatisfactory range. Sinclair was given a 90-day probationary period letter, which stated "failure or refusal to remediate all areas identified as deficient would be less than effective BrIDGES evaluation and/or termination of contract." The PDP highlighted Sinclair's performance concerns, which included but were not limited to the following: failing to systematically tract academic progress of students who were in danger of failing; inability to get participants to record and represent the exchange of information from interactions with the counselor; inability to consistently access and utilize technology to enhance the quality of services; inability to develop or articulate interventions or providing counseling to develop effective behaviors; and failure to collect and analyze data to develop interventions with the RtI framework. On February 6, 2015, Corridon, the second peer reviewer, started coaching Sinclair twice a week. She reviewed and provided assistance in all the areas Sinclair made an unsatisfactory rating on the PDP. On February 9, 2015, Jones emailed Sinclair to instruct her to read Policy 6000.1, and a meeting would be set soon to discuss the policy. Corridon spent coaching sessions going over and over the same areas of assistance with Sinclair. Sinclair would often forget her password, after writing it down. Corridon went over the RtI process manually and the next time Corridon reviewed it with Sinclair, Sinclair was not be able to follow through the RtI process independently. Sinclair did not demonstrate any consistency and there was not much effectiveness in terms of improvement with regards to performance. After Sinclair was placed on PDP, observations continued to ascertain the status of her work performance and progress. Jones observed Sinclair on March 5, 2015, March 8, 2015, March 30, 2015, April 9, 2015, May 1, 2015, and May 8, 2015. Arrojo observed Sinclair on March 3, 2015, March 9, 2015, March 19, 2015, and April 14, 2015. During the observations, Sinclair consistently continued to make numerous mistakes and rarely was capable of performing her job successfully. As a guidance counselor, Sinclair had an office to work from, was provided the opportunity to attend regular guidance department meetings with the other guidance counselors, sit in on plan reviews, schedule reviews, and share other counselor information together. Even so, Sinclair continued to commit constant errors repeatedly. She did not improve and her mistakes endangered the students' graduation timelines, college entrance opportunities, as well as scholarships. Additionally, she put undue strain on the guidance department by having the other guidance counselors in the department stop their workload, pick up Sinclair's work to get it done or correct her errors. Numerous scheduling and transcript errors had to be corrected by the other staff. Sinclair showed minimal improvement and still could not put basic guidance counseling skills into practice. Instead, she repeated the errors even after extensive coaching and one-on-one training. On March 4, 2015, Western had an incoming ninth grade open house. The event is for incoming freshman and their parents from the middle schools to come and learn about Western. Sinclair failed to show up even though she was required to attend and she did not contact any one to let them know she would not be in attendance. Other guidance counselors had to step in and handle Sinclair's table for incoming freshmen. Sinclair never provided an excuse for her absence. Prior to the open house, Arrojo had informed Sinclair that he would be introducing her to the 1000+ visitors at the event. On March 8, 2015, Jones observed Sinclair and memorialized the observation in a post observation summary memo dated March 18, 2015. Sinclair provided 19 records for 11 students, of which only four were at risk, even though Jones had asked her yet again for the at risk students' list as she had been requesting since January. Sinclair was still not providing the at risk student list so that the intervention plans could be created and implemented to provide the services needed by the students. Jones also requested RtI records with the at risk list. The 19 records were all Sinclair supplied from August 2014 to March 8, 2015. At some point, Sinclair said over 100 students were at risk but she only brought four at risk student records to the meeting of March 8, 2015, not the requested list. Sinclair had very little documentation of her efforts to help the students. Sinclair also failed to be able to list or address the traits of Policy 6000.01 as requested on February 9, 2015. Additionally, when asked, Sinclair was unable to discuss quality points, the points provided for higher-level classes like AP that boost students GPA for graduation. Sinclair needed to comprehend and be able to explain quality points to parents and/or students to successfully perform her job. Sinclair only contacted 20 students in December and 63 in January according to her log. Jones determined the number was low since December is only two school weeks. Out of the 83 students contacted, Sinclair failed to address the need of improving one's GPA, which 520 of the ninth graders also needed her assistance with, as well as her providing them with information. By email on March 9, 2015, Corridon scheduled Sinclair to go to Cooper City High School ("Cooper City") on March 16, 2015, at 9:00 a.m. to shadow Clara Able ("Able"), a guidance counselor, so she could observe her day-to-day activities and be taught more counseling skills. On March 10, 2015, Jones emailed Sinclair and requested she provide additional documentation about some items discussed in the earlier March Policy 6000.1 meeting observation. Jones set a deadline of March 13, 2015. Jones requested the information so that she could properly rate Sinclair from the observation. Jones informed Sinclair that she could provide her more time if she could not have the documents ready by the 13th as requested: You mentioned that you call in students, call home to parents to provide tutoring information, etc. Please provide me with recent documentation that corroborates your outreach efforts. Examples of this could be L27 entries, list of targeted students, phone logs, examples of the tutoring services, etc. You mentioned you shared the Quality Points information with parents/students who come to your office. Please provide documentation of who has received this information and what exactly you share with them. At the meeting, Sinclair provided Jones incomplete L panels6/ and student sign in logs, which failed to have the sign out time for the students and incomplete. Out of the 18 contacts provided, Sinclair was only able to provide records for less than 10 students. The backup materials provided did not provide any details of discussions with students she had met with to utilize later for follow up or documentation. Jones reminded Sinclair during the meeting that she was available to help her if needed and even though she was receiving assistance from site-based coaches and a peer reviewer, there were still on-going concerns regarding her performance. By email on March 13, 2015, Jones scheduled a meeting with Sinclair on March 19, 2015. The email notified Sinclair that the meeting would cover RtI, student registration, and SBBC Policy 6000. The email instructed Sinclair, "As we will need to reference documentation on those topics during the meeting, the meeting will take place in your office. Please be ready to refer to items in your possession on the topics referenced above during our meeting." On March 16, 2015, Sinclair showed up approximately an hour and forty minutes late for her shadow session with Able. By the time Sinclair arrived Able, had left Cooper City and Sinclair did not get the counseling training. On March 17, 2015, Jones provided Sinclair a meeting notice to report to the principal's office on March 30, 2015, at 9:00 a.m. to review her PDP. On March 18, 2015, Arrojo hand-delivered a summary memo to Sinclair from the March 13, 2015, meeting, which stated: Middle school registration took place this week at Indian Ridge Middle School. You came to the middle school with the incorrect course cards. You arrived and placed the Grade 10-12 Course Selection sheets (green cards) on the desk to register the incoming freshmen or current 8th graders. Ms. Cohen, Guidance Director, told you those were the incorrect forms and supplied the correct ones to you (blue cards). The next day, you again brought the incorrect Grade 10- 12 Course Selection sheets and placed them on the desk for the incoming 9th grade students to use. Ms. Cohen, Guidance Director, again removed the forms from the desk and provided the correct ones for you. You were unable to start a testing session for the group of students you were proctoring on March 11, 2015. You were trained on protocols for testing administration on February 26th, 2015. You were a Testing Administrator in a session previously held on March 2, 2015. You reported to the computer-based testing session without your laptop on March 11, 2015. As Testing Administrator, your laptop was required in order to start the session and approve students to begin testing. You were searching for a session code in the bin to begin computer-based testing, unaware that one had to be created once you log in as the Testing Administrator. Ms. Cohen, Guidance Director had to log in as Testing Administrator for the session as you were unable to log in after multiple. On March 19, 2015, Arrojo, Jones, and D. Jones observed Sinclair. She was incapable of explaining how a student earns a credit. She confused semesters with nine weeks and included the EOC calculation percentages when explaining the general course calculations. Sinclair also failed to explain how to utilize the forgiveness rule. Sinclair did not have an understanding of how to use the tool to help students make up credit and replace or forgive a student's original bad grade, which helps improve the GPA of the student who failed. Jones scored her beginning for the meeting. During the meeting, Sinclair also displayed her typical responsive behavior to the administrator's questions. She stared blankly in response to pointed questions. Sinclair never provided the RtI list, even though she had been over RtI during the 2013-2014 school year. Ultimately, Arrojo had D. Jones pull the list and D. Jones took over RtI because Sinclair was incapable of performing the task. On March 20, 2015, Cohen met with Sinclair to follow up on the status of the transcripts that had been previously erroneously handled. Sinclair failed to have them corrected by the March 20, 2015, deadline. Cohen used the meeting to provide coaching on accurate future transcript evaluation. Cohen sat with Sinclair one-on-one and went through each folder and listed with her what needed to be done to award the students credit as well as provided examples. Cohen reminded Sinclair to indicate student name and student number, use designated colors to highlight grade level credit earned, and add appropriate assessment codes to EOC courses. During the coaching session, Cohen also pointed out transcript and registration errors. One such error discussed was Sinclair awarding half of a credit to a student when Dade County clearly stated the student was in Term 1 or Quarter 1 and the student could not have earned a credit yet. Cohen never received the requested transcripts. Cohen suggested Sinclair check her drawers for the missing transcripts and Sinclair became upset. The transcript information was not available to be entered into the system and students were not properly placed or were in statuses to miss credits for graduation. The guidance department also had to request transcripts from prior schools a second time because of Sinclair not supplying the transcripts. Sinclair's deficiencies in her performance as a guidance counselor continued almost on a daily basis. On March 30, 2015, a meeting was held to review Sinclair's PDP. Sinclair's Instructional Practice Score had improved minimally to 2.043, needs improvement. The meeting ended with Arrojo agreeing to continue to provide Sinclair observations and coaching in an attempt to help Sinclair improve her work performance. On April 2, 2015, a memo was written regarding the March 30, 2015, meeting outlining Sinclair's ongoing performance issues. The memo detailed the following observations: During the observation, Ms. Sinclair could not identify students that she was the case manager for and therefore, unable to provide strategies for improvement. Ms. Sinclair was able to log in to Virtual Counselor but was not familiar with the RtI layout in Virtual Counselor. During the observation, Ms. Sinclair continued to click on the screen hoping to navigate through the website. Mr. Sinclair was unable to describe how a student earn a credit. In speaking, Ms. Sinclair included the EOC calculation percentages while explaining the general course calculations. On April 7, 2015, Jones conducted a formal observation meeting with Sinclair. A new student from a private school was being registered and enrolling as an incoming ninth grader. Sinclair showed up 15 minutes late without any explanation or apology for tardiness. Sinclair recommended four out of the six classes that were closed to the student. The four classes were all on the closed class list Sinclair had been provided both by a printed copy on April 6, 2015, and emailed on March 30, 2015. After the registration observation, Jones asked Sinclair for the closed class list provided to her. Sinclair had it taped to her desk but she did not use it when registering the student. Jones asked Sinclair to tell her which classes she had recommended to the parent and she could not answer. Sinclair also could not find the student's name in Virtual Counselor. Sinclair's work continued to be unsatisfactory because she failed to competently perform her duties as a guidance counselor; failed to communicate appropriately with students, colleagues, administrators and parents, which caused numerous complaints; stared and refused to acknowledge conversations with administrators; failed to have command of her area of specialization as guidance counselor with the repeated errors. Additionally, she made the same mistakes over and over and did not show improvement or competency. On April 9, 2015, Corridon provided Sinclair's last coaching session. In April, Jones was still trying to get the list from Sinclair of students who failed the first semester even though it was late in the year to start addressing the struggles of failing students. On April 28, 2015, Jones conducted a formal observation and requested Sinclair go through the process of creating a referral in RtI. Sinclair was able to login to the referral database but clicked from screen to screen, unable to either navigate the database properly or record key information. Sinclair also failed to navigate resource sites necessary to provide students resources for assistance. Jones rated Sinclair a beginning for the exercise. On May 1, 2015, a post observation conference was held with Sinclair to discuss the observation of April 22, 2015. Sinclair, David Olafson, and Jones attended. Jones shared the findings from the Marzano observation system, which Sinclair obtained beginning/not using datamarks in design question 2, element 12 and elements M and Q. Specifically, Jones documented the following observations in the memo: Lack of familiarity with the BASIS database when entering students and other pertinent information. The counselor advises students to visit certain websites to begin to do better in school. The students receive no handout with key points or an overview of what the website offers. The counselor does not diversity the resources offered to students in danger of failing and the do not address they students deficiencies. Students in danger of failing were expected to create their own plan for success. Some students have been in danger for failing all year and were not seen until April 2015. On May 6, 2015, a meeting observation for domains 2 through 4 was conducted. Sinclair was asked to pull up the presentation she used for incoming freshmen to discuss graduation requirements. She was not able to find the document after multiple tries. On May 8, 2015, a post observation conference was held to discuss the results of the 30-minute observation held on May 6, 2015. Jones outlined Sinclair's ongoing performance concerns and numerous errors, as well as improper actions, which included Sinclair: improperly inputting 21 out of 38 transcripts reviewed; failing to monitor and assist three students in danger of failing by only meeting with each of them one time in April; failing to review the TERMS panels with each student along with Virtual Counselor; failing to assess the student's deficiencies incorrectly so was unable to offer additional services to the student, which impacted student's placement and graduation status; failing to look at two student's L panels to review their history and help develop the direction to proceed; and failing to provide services to a student who indicated problems at home. That same day Jones notified Sinclair to report to the principal's office on May 15, 2015, for the final review of PDP. On May 15, 2015, Sinclair's final review was conducted. She never was able to perform the basic functions of counseling. Sinclair failed to do the job and her ineptitude continued throughout the PDP process. Sinclair's final Instructional Practice Score was 1.974, unsatisfactory. As a result, Arrojo recommended Sinclair for termination based on her failure to correct her performance deficiencies during a 90-day PDP. After Sinclair left Western, the missing transcripts Cohen had requested from Sinclair and instructed her to look for were found in Sinclair's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order: dismissing the charge of violation of rules 6A- 5.056(2)(a); finding Respondent in violation of rule 6A-5.056(2)(b), (c), (d), and (e); rule 6A-5.056(3); sections 1012.33, 1012.53(1) and (2); and School Board Policy 4008(B). upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 10th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent has been employed by the Escambia County School Board since 1967. On or about October 3, 1973, he was suspended from his position as Principal of Scenic Heights Elementary School because criminal charges had been filed against him. Sometime during the year 1971, Respondent and Mr. Alfred F. Brown went to an auction of leased office equipment at the Holiday Inn on Highway 29. Items for bids were on display in a room and identical items were in boxes in a trailer outside. Persons in the display room were able to bid on the displayed articles or to purchase boxed items at the same price which the highest bidder had paid. Respondent did not bid at the auction, but he did purchase two Bell and Howell projectors, two Wollensak tape recorders and a Panasonic portable television set. Respondent did not notice any school markings on these items and he kept them in his home from 1971 until October of 1973. On August 9, 1973, Respondent went to Zoellner Music House to pick up Mr. James Justice, a blind piano tuner, and take him to his residence to tune an eight to ten year old Story and Clark piano located in Respondent's living room. Mr. Justice was under the impression that said piano belonged to Scenic Heights Elementary School, and that the tuning was being done because Respondent was having an open house for the teachers at his school . Mr. Justice was also asked by Respondent to give his opinion as to the condition of a ten to eighteen year old Wurlitzer piano located in Respondent's garage. Pursuant to instructions from Respondent, the secretary at Zoellner's made out the bill for the tuning to Scenic Heights School. Mr. Justice brought said bill to Respondent's residence when he tuned the piano and Respondent signed the bill on the same day. Respondent did not pay for the twenty dollar tuning bill. In March of 1973, Respondent and his wife purchased a home located approximately one block from Scenic Heights Elementary School. They moved into their new home in July, 1973. Respondent used one of the rooms in the house as an office. In mid-July of 1973, Respondent purchased from Bill Thompson's Office Equipment Center a 30-compartment cabinet, an executive chair, an executive and a secretarial plastic chair mat and a file cabinet. The statement for these items in the total amount of $328.20 was made to Scenic Heights Elementary School. It was the testimony of Respondent and his wife that Respondent told Thompson's that he intended to pay for those items used in his home office, but that he requested Thompson's to sell him the items at the same discounted price which the county schools would be charged. The bill was not paid by Respondent as of October 3, 1973--the date he was suspended by the school board. On August 11, 1973, Respondent purchased two lawn rakes and the bill in the amount of $17.02 was made to Scenic Heights School. Respondent explained that he purchased these rakes for the Boy Scouts to use when they wished to contribute something for the school. These two rakes were not found at the school. At the time Respondent and his wife moved into their new home in July of 1973, Respondent owned an old, dark Wurlitzer piano which did not match his wife's new living room furniture. Sometime in July, Respondent and his wife drove over to Santa Rosa County to the Treasure House to look at antiques. While there, Respondent met the owner, Mr. Franklin Willis, and Inquired whether Willis had or ever got any used pianos. Mr. Willis told Respondent that he did not ordinarily stock pianos because of their size, but said he would call Respondent if he ran across any. Respondent left his business card with Willis for that purpose. While Respondent was at the Treasure House, he also saw Harley Carmen Phillips, whom he knew previously from having Mr. Phillips work on his cars. Within a week or two after this, Respondent again had Phillips do some work on his car and they discussed the purchase of a fishing boat. On or about August 3, 1973, Respondent bought the boat from Phillips, who delivered it to Respondent's residence. Respondent paid for the boat by a $700 check. Phillips had trouble cashing the Respondent's Pensacola bank check at a bank in Milton. During this period of time, Phillips and Willis were in the business of transporting stolen automobiles from one state to another and selling them. At a later time they were both convicted for violations of the Dyer Act and served time in the penitentiary. Respondent was unaware of the illegal activities engaged in by Phillips and Willis until October of 1973. A week or two after his visit to the Treasure House, Respondent received a telephone at the school from Mr. Willis. Willis informed Respondent that he had a piano he thought Respondent would be interested in. Respondent said he would have to see it first. About noon, Mr. Phillips brought in Willis truck a Story and Clark piano to Respondent's residence. Respondent called Willis to negotiate the price he would pay. Respondent thought he could sell his old Wurlitzer for about $400 and he therefore offered Willis $400 for the Story and Clark. Willis agreed. Due to the trouble Phillips had had previously cashing the Respondent's check for the boat, Respondent paid for the piano in cash. Phillips helped Respondent move his old Wurlitzer into the garage. When the Story and Clark piano was being delivered, Respondent's maid, Ms. Magnolia Long, now deceased, told Respondent that she would like to have a cheap piano for her child. Respondent therefore told Willis on that same day to be "on the lookout" for a piano costing $100 or $125. On or about August 17, 1973, Willis called Respondent at school and told him he had a piano for Respondent's maid. Respondent told him to bring it to his residence around 3:00 p.m. and he and the maid would look at it. Again, Phillips was driving Willis' truck with two pianos on it. Ms. Long said she wanted the piano so Respondent called Willis to negotiate the price. They agreed upon a price of $125. While on the phone, Willis offered to sell the other Wurlitzer piano on the truck to Respondent. Respondent said he would buy it for a good price, figuring that he could sell it at the same time that he sold his old Wurlitzer. He thus bought the second piano on the truck for $225 by a check made out to cash. That piano was placed in Respondent's garage along with the originally owned Wurlitzer, and the $125 piano was taken to the home of Ms. Long. Respondent told Ms. Long that he would deduct any profit he made on the sale of the $225 piano from the cost of the $125 piano he bought for her. Respondent then placed a classified ad in the Pensacola News Journal advertising the two Wurlitzer pianos for sale. He sold them both, receiving $350 from John Boazman for the piano Respondent had paid $225. Thus, Respondent did not charge Ms. Long anything for the $125 piano. Mr. Boazman testified that Respondent had told him at the time that he was selling this piano for a friend, and went to the house to call said friend to see if he would accept $350. Sometime thereafter and at the request of Ms. Long, Respondent called Willis and inquired about obtaining another piano for Ms. Long's church. This time, Willis himself brought the piano to Respondent's residence. Respondent thought that Ms. Long's church could raise the money for the piano and, if not, Respondent could get the P.T.A. to buy it for his school. With the exception of the Wurlitzer piano originally owned by Respondent, all of the other pianos were stolen from churches outside the Pensacola area. The only evidence that Respondent had knowledge that these pianos were stolen came from Mr. Willis, who testified that Respondent told him to get the pianos from areas other than Pensacola. Respondent purchased from Willis a riding lawn mower for $140 and approximately 54 bundles of shingles. These items were also stolen by Willis. Sometime in late September of 1973, Mr. Willis was arrested and charged with receiving stolen property and possession of a firearm by a convicted felon. He also had federal charges pending against him for transporting stolen automobiles across state lines. In exchange for information on Respondent, the State granted Willis immunity on the stolen property charge. The possession of a firearm charge was dropped for insufficient evidence. The State also agreed to help Willis on the federal charge by explaining to the judge that Willis had given information regarding Respondent. Based upon information from Willis that certain reported stolen items were located in Respondent's home, a search warrant was executed on October 1, 1973. Respondent was not home at the time, and law enforcement officers seized the Wurlitzer piano located in Respondent's garage, the Story and Clark piano located in Respondent's living room and a Zenith radio having a school board property number on it. Respondent was arrested on the same date while at a conference in Santa Rosa County. Another search of Respondent's residence was conducted on or about October 19, 1973, and the following items were found: two tape recorders, two projectors, a Panasonic television set and a riding lawn mower. There was evidence that the television set had the name of Fideles School written on it in indelible ink. The shingles were found in the carport at a rental home owned by Respondent or his wife. During October 22-24, 1973, three tape recordings of conversations between Respondent and Willis were taken with the consent of Willis and without the knowledge of Respondent. Respondent's attorney had advised him to talk with Willis and to obtain any information he could from him regarding the charges against Respondent. Respondent had many conversations with Willis between October 1 and the dates of the tape recordings. At the time of the recordings, Respondent had already been told by Willis that the items sold to him had been stolen. Respondent explained that he had taken the Zenith radio from the school in order to listen to the election returns at his home. He further explained that it was always his intention to personally pay for the piano tuning and the office equipment in his home. His suspension on October 3, 1973, prevented him from doing so.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's teaching certificate be revoked for a period of six years, effective August 31, 1973. Respectfully submitted and entered this 10th day of February, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P. 0. Box 1752 Tallahassee, Florida 32302 James A. Johnston, Esquire One North Palafox Street Pensacola, Florida 32501 Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: GLENN PORTER DISMUKES DOAH CASE NO. 76-1776 /
The Issue The issue in this case is whether the Application to Participate in Educational Scholarship Programs submitted by the Petitioner, Hodge Pavilion Stem Academy (6402), should be approved.
Findings Of Fact The John M. McKay Scholarships for Students with Disabilities Program (McKay) and the Florida Tax Credit Scholarship Program (FTC) provide state funds to pay private school tuition to qualified students. Private schools must apply to, and obtain approval from, the Respondent to participate in the scholarship programs. Approval of an application authorizes the private school to receive the scholarship funds. Individual scholarship checks are made payable to the parent of each qualified student and the name of the student’s private school. The parent endorses the check and provides it to the school. In the spring of 2013, Mr. Jenkins and an associate, Ayesha Hackman, founded a private school identified as the “Harmon-Hodge STEM School.” The Harmon-Hodge STEM School submitted an application to participate in the McKay and FTC programs. The Respondent approved the application. Not long after the Harmon-Hodge STEM School was founded, Mr. Jenkins and Ms. Hackman began to disagree about the direction of the school. When Ms. Hackman sought to obtain control over the school, Mr. Jenkins announced to her that he was severing his ties with the school. At Ms. Hackman’s request, Mr. Jenkins agreed to continue his employment with the school. During the summer of 2013, Mr. Jenkins and an associate, Tami Robinson, began to organize another private school, the Petitioner in this proceeding. By August of 2013, Ms. Hackman consolidated her control of the Harmon-Hodge STEM School. She amended the corporate documents to designate herself as the chief executive officer, to identify Mr. Jenkins as the school principal, and to delete the hyphen from the school name (now identified as the “Harmon Hodge STEM School.”) Students began attending the Harmon Hodge STEM School in August of 2013. One month later, the school started accepting scholarship checks payable to the “Harmon-Hodge STEM School.” Mr. Jenkins came into possession of an FTC scholarship check for $1,183.40, made payable to the parent of an enrolled student and to the Harmon-Hodge STEM School. In early October of 2013, Mr. Jenkins opened an account at a Wells Fargo bank in the name of Harmon Hodge STEM School and deposited the check into the account. Mr. Jenkins designated only himself as the authorized signatory on the account and did not advise Ms. Hackman that he had opened the account. Very shortly after the account was opened, Wells Fargo notified Mr. Jenkins that the account was being closed. At the hearing, Mr. Jenkins testified that the account closure was related to a previous incident of identity theft involving his personal bank account. Wells Fargo returned the deposited funds to Mr. Jenkins in the form of cash. At the hearing, Mr. Jenkins testified that he used some of the cash to pay Harmon Hodge STEM School vendors who, he said, had not been paid by the school. No documentation was offered to support the testimony. Mr. Jenkins testified that the vendors did not present bills for services, and no receipts for payment were obtained from the vendors. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remainder of the cash because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. After the Wells Fargo account was closed, Mr. Jenkins came into possession of two FTC scholarship checks totaling $2,400 that were payable to the parents of enrolled students and to the Harmon-Hodge STEM School. Mr. Jenkins then opened a bank account at Bank of America in October of 2013, again in the name of Harmon Hodge STEM School. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. As was the case with the Wells Fargo account, Bank of America notified Mr. Jenkins shortly after the account was opened that the account was being closed. Mr. Jenkins testified that this account closure was also related to a previous incident of identity theft involving his personal bank account. Bank of America returned the deposited funds to Mr. Jenkins in the form of a bank check made payable to Harmon Hodge STEM School. Using the Bank of America bank check, Mr. Jenkins opened a third account, still in October of 2013, in the name of Harmon Hodge STEM School, this time at Chase Bank. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. Mr. Jenkins used a debit card issued on the Chase account to withdraw cash from the account and to spend the funds in the account. Mr. Jenkins again testified that he used some of the cash withdrawn from the Chase account to pay Harmon Hodge STEM School vendors. No documentation was offered to support the testimony. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remaining Chase deposit because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. Towards the end of October, Ms. Hackman became aware of the unauthorized banking activity and filed a report with local law enforcement. Criminal charges were filed against Mr. Jenkins related to some of the banking activities referenced herein. The charges were pending at the time of the hearing. On October 30, 2013, Mr. Jenkins submitted an application on behalf of the Petitioner seeking approval to participate in the McKay and FTC scholarship programs. By letter dated January 8, 2014, the Respondent, aware of the banking activities referenced herein, notified Mr. Jenkins that the application was denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order denying the Petitioner's Application to Participate in Educational Scholarship Programs. DONE AND ENTERED this 17th day of June, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2014.
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Edwin D. MacMillan, held teaching certificate number 439378 issued by petitioner, Betty Castor, as Commissioner of Education. The certificate covers the areas of mathematics, social studies, and psychology and is valid through June 30, 1993. When the events herein occurred, respondent was employed as a teacher at Hilliard Middle- Senior High School in Hilliard, Florida. The school is a part of the Nassau County School District. For nine years respondent taught general and upper level mathematics, algebra, geometry and trigonometry at Hilliard Middle-Senior High School. He also assisted in the coaching of various athletic teams, including the girls' basketball team. Based upon the charge that respondent engaged in inappropriate and unprofessional conduct towards certain female students, on May 9, 1991, respondent was suspended from his teaching position by the School Board of Nassau County. He has remained suspended pending the outcome of this proceeding and another inititated by the School Board. 1/ It is noted that all of the students who are the subject of this complaint have now graduated The administrative complaint first alleges that in school year 1986-87, "respondent drove C. D., a minor female student, home from a basketball game and made a suggestive comment about her 'giving him some.' On another occasion, the Respondent grabbed C. D.'s buttocks as she was exiting a room." As to these two charges, the evidence shows that during the school year in question, Cheryl Donley was a ninth grader and the manager of the girls' basketball team. Respondent served as the coach of the team. On an undisclosed date during basketball season, respondent carried a number of players and Cheryl home after practice one afternoon. Cheryl, who was sitting in the back seat, was the last student to be dropped off. Just as respondent drove up in front of Cheryl's house to let her out of the car, Cheryl says she told respondent "Well, Mac, you've dropped everyone off except me, I guess I'm the last one" and that respondent made a remark to this effect: "You're going to have to give me some for this one." Although Cheryl says she was taken aback she said nothing and got out of the car. While on an overnight trip to the state basketball tournament later on that school year, Cheryl told an adult chaperone a different version of the remarks allegedly made by respondent. On that occasion, she embellished the story by alleging that respondent told her he was not going to take her home, and that he would take her off on a county road and show her a good time. Respondent denied that either version of statements was made. At hearing, Cheryl conceded that respondent often joked around with students and agreed that he may have said something without intending it to be taken in the manner that it was. In light of this, and given the above material inconsistencies in her recollection of the conversation, it is found that respondent may have said words to the effect "you owe me for this one" but Cheryl misconstrued his remarks. It is further found that respondent did not intend his remarks to be taken as sexually suggestive or to imply any inappropriate connotation. Finally, there was no testimony concerning the allegation that respondent "grabbed C. D's buttocks as she was exiting a room" and thus that charge must likewise fail. The second allegation in the complaint concerns events some three years later, or in school year 1989-1990, when respondent is alleged to have "made inappropriate and suggestive comments to J. S., a minor female student, including making comments about her appearance such as 'I like the way your butt looks' and offering to go with her to a dark corner of a room." As to these charges, the evidence shows that Jessica Smith was a student in respondent's algebra II classroom during the school year in question. She was then a senior and around eighteen years of age. On an undisclosed date during that school year, the boys' and girls' basketball teams were playing games at Folkston, Georgia. After the girls' game ended, respondent took a short break in a commons area near a concession stand. Jessica had just been to the concession stand and walked by him while returning to her seat. The two engaged in a brief conversation about the attractiveness of the new school facility. Jessica related that at the end of their short conversation respondent told her "he knew where all the dark corners were" and could point them out. Respondent denied that those exact words were spoken and recalled that he may have said in a joking manner "don't let me catch you in any dark corners". In any event, Jessica gave a nervous giggle and then left. At hearing, she indicated that she construed the remarks as being sexually suggestive. However, it is found that respondent's version of the conversation is more credible. Further, it is found that respondent did not intend the remarks to be sexually suggestive or to otherwise imply any inappropriate connotation. Finally, there was no evidence that respondent made comments about Jessica's appearance including the remark "I like the way your butt looks." The final allegation concerns events that took place the following year, or in school year 1990-1991. The complaint alleges that respondent "engaged in sexual intercourse" with a minor female who had withdrawn from school. The sexual misconduct allegedly occurred in a coach's office. The evidence shows that during the school year in question, Shalane Bryant was a senior at Hilliard Middle-Senior High School. Around January 25, 1991, she withdrew from school and did not reenroll until February 15, 1991. Although Shalane had never been in one of respondent's classrooms, she knew who he was because her best friend was a student in one of his classrooms. Her younger brother, Chad, was a member of the boy's basketball team. Shalane was described by other students as having a reputation for not telling the truth. On an undisclosed date in January 1991, but after Shalane had withdrawn from school, the varsity and junior high boys' and girls' basketball teams visited Jacksonville to play Southern Baptist. After the girls' game ended, the team members and coach (respondent) boarded a school bus around 8:10 p.m. and drove to the Dunn Avenue exit on Interstate 95 where the bus exited to a nearby fast food restaurant. After the team finished eating, the members reboarded the bus and eventually returned to the school gymnasium around 10:00 p.m. Respondent unlocked the door to the gymnasium, spoke briefly with the parents of an injured player, and then placed balls and equipment inside the gymnasium. He also physically checked each door to make sure that it was locked and left the gymnasium within 5 to 10 minutes after entering the same. While inside, he spoke briefly with Shalane, who had momentarily entered the gymnasium from the parking lot while waiting for Chad to return from Jacksonville. As it turned out, Chad was not scheduled to return until after the boys' game was completed. Respondent departed the gymnasium around 10:10 p.m. and was home before 10:30 p.m. This was corroborated by another witness. Although Shalane contended that she and respondent had sexual intercourse in the coach's office around 8:30 p.m. that evening, this assertion is rejected as not being credible. According to the school principal, who was accepted as an expert in secondary school administration, if the charges of having sexual intercourse with a former student and making "sexual invitations" to two other students as alleged in the administrative complaint were true, respondent would have "a real problem" continuing to teach in Nassau County since she believed that both students and parents would "have a problem dealing with that with him still being a teacher at Hilliard High School." She also pointed out that respondent and other teachers are given instructions during each school year to refrain from making sexually suggestive remarks to students. Since the underlying assumptions for the expert's opinion were not proven to be true, it is found that respondent's effectiveness as an employee was not impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against respondent. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992.
The Issue Whether the respondent should be reassigned to the Opportunity School?
Findings Of Fact Joseph Hernandez attended Glades Junior High School during the 1984-85 school year. During that period of time, he had numerous referrals to the guidance counselor and assistant principal. He cut class, he was disruptive in class, he had a very short attention span, he would not follow instructions, and he was physically abusive to smaller children. Respondent was very disruptive in art class. He destroyed art material, and he would push and shove other students. On occasion, Joseph would sneak out the back door of the art room and skip the rest of the class. He also would take a bathroom pass and then use it later in the day. On one occasion Mr. Clark observed the respondent grab a smaller child by the child's head and lift the child off the ground. When respondent was told to release the child, he refused to do so. Joseph's grades at Glades Junior High were not much better than his behavior. He received a "B" in woodshop, a "B" in math, a "C" in physical education, a "C" in art, an "F" in language arts and an "F" in social studies. Joseph was in a low level math class but all the other classes were regular level. Joseph was capable of performing the work in a regular classroom and probably should have been in a regular level math class. Joseph did not have any desire to move out of lower level math. When his math teacher stated in front of the class that Joseph had done so well he would be placed in a regular math class the following year, he got very upset. He told the teacher that if she put him in a regular class he would flunk and she would think of him every night and feel guilty. When the teacher responded, "I think of all my students every night before I go to bed." Joseph replied, "You must not have any wet dreams." The guidance counselor at Glades held several guidance sessions with Joseph and his father. Joseph had no serious psychological problems, but he was unstable and needed guidance. On a one-to-one basis, Joseph was quite personable. However, he liked to be the center of attention. The personnel at Glades Junior High believe that Joseph would be much better off in the smaller classes offered at the alternative school. Joseph enrolled in West Miami Junior High for the 85-86 school year. Joseph's behavior at West Miami was no better than his behavior had been at Glades. He rebelled against authority, he showed up late for class, he was rude to the teachers, and he would come to class without any books or materials. On September 19, 1985, he was referred to indoor suspension for three days due to his disruptive behavior. However, he refused to follow the SCSI rules and therefore was on indoor suspension ten days rather than the original three. Joseph not only disrupted his own classes, he disrupted other classes. One day he sauntered into a seventh grade computer class, walked around the room, and said that he had come to fix the air conditioning. He refused to leave the classroom when the teacher told him to leave and was quite arrogant. Finally, when he was ready, he left the room. On November 6, 1985, Joseph was assigned to the alternative school, but he never attended. Therefore he was carried on the rolls of West Miami Junior High School throughout the semester. Of the ninety days in the semester, Joseph was in class for a total of 13 days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of the respondent to the alternative school program at Douglas McArthur Senior High School-South. DONE and ENTERED this 26th day of March, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986. COPIES FURNISHED: Mark A. Valentine, Esq. Assistant School Board Attorney 3050 Biscayne Boulevard Suite 800 Miami, FL 33137-4198 Mr. Pedro L. Hernandez 10001 West Flagler Street Lot #L1214 Miami, FL 33174 Madelyn P. Schere, Esq. Ms. Maeva Hipps 1450 N.E. Second Avenue, Ste. 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, F1 33132
