The Issue Did Respondent, Liudmila Parker, commit misconduct in office, willful neglect of duty and gross insubordination in violation of section 1012.33(1)(a), Florida Statutes (2011),1/ as well as engage in conduct unbecoming a public employee? Did Ms. Parker violate the Principles of Professional Conduct for the Education Profession and Orange County School Board Management Directive B-12? What discipline, if any, should Petitioner, Orange County School Board (Board), impose on Ms. Parker?
Findings Of Fact Stipulated Facts Admitted by Both Parties2/ The Board employed Ms. Parker as a classroom teacher. Ms. Parker held a Professional Service Contract with the Board. Ms. Parker received a written reprimand on May 3, 2010, for verbal intimidation of students and interfering in an investigation. On November 19, 2010, Ms. Parker received a written reprimand for embarrassing students. On November 29, 2010, Ms. Parker received a 5 day suspension without pay for confronting a student regarding a complaint the student and his parent made about Ms. Parker. From February 9, 2011, through the end of the 2010-2011 school year, Ms. Parker was on relief of duty status without pay. Background Facts Ms. Parker taught ninth-grade English for Speakers of Other Languages (ESOL) at Dr. Phillips High School in Orange County, Florida, during the 2011-2012 school year. Ms. Parker has been teaching for 34 years. She started teaching in Lithuania where she taught for 27 years. In Lithuania she also taught ESOL. Ms. Parker majored in ESOL and has taught it all her life. Assistant Principal of Instruction Dr. Suzanne Knight was Ms. Parker's direct supervisor. When Ms. Parker began work at Dr. Phillips, she was given a copy of the Dr. Phillips High School Faculty and Staff Handbook. She also had access to an electronic copy of the handbook. The handbook included a copy of the Principles of Professional Conduct of the Education Profession in Florida. The handbook also included a copy of Orange County Management Directive B-12, Code of Civility. Ms. Parker read and understood the handbook. Ms. Parker read and understood the Principles of Professional Conduct of the Education Profession in Florida. Ms. Parker read and understood the Code of Civility. The handbook described and emphasized how to use common sense and professional judgment to avoid complications resulting from conduct that violates the Code of Ethics. The handbook included these admonitions: "All co-workers and employees of the district are to be treated with dignity, respect and courtesy at all times." "Use common sense and good judgment. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted." "Avoid putting yourself in a position where you have to defend, explain or justify your behavior or actions." December 8, 2011, Email Dr. Phillips High School Principal Eugene Trochinski observed Ms. Parker's classroom teaching on November 17, 2011. Dr. Knight observed Ms. Parker's classroom teaching on December 5, 2011. Mr. Trochinski and Dr. Knight gave Ms. Parker written comments after observing her performance. On December 8, 2011, in an email to Mr. Trochinski and Dr. Knight, sent at 3:52 a.m., Ms. Parker stated that she had "several questions to ask." The tone and the text of the email were confrontational and belligerent. Each of Ms. Parker's "questions" was in bold face font, something Ms. Parker does to demonstrate her indignation. Some of Ms. Parker's supervisors' observations and her "questions" follow: Observation--"Student in back of room working on Rosetta Stone but not engaged in daily lesson." "Question" "Do you think they should work with the whole group without understanding anything?" Do you think it is better for them???" Observation--"How do you celebrate success in the lesson" There was no evidence of this between teacher and students during my observation." "Question": "Do you want me to interrupt the test and start celebrating success because you came in for observation???" Observation--[Although the specific observation was not reproduced, it was plainly about the students not appearing to be engaged and the lesson being difficult to focus on.] "Question(s)"--"My students demonstrated good behavior and they were listening attentively. Your comments 'Students did not appear to be engaged in the lesson' and 'It was hard to focus on the lesson due to not understanding the starting point' do not make sense at all. Hard to focus for who? For you??? May be. My students were focused!!! Once again,Dr. Knight was in class during Benchmark test results analysis. Her comments show that she does not like to see that students are focused and attentive." Ms. Parker follows her "questions" with: "To sum up, I evaluate the above-mentioned comments of administrators as one more evidence of a biased attitude towards me at school; it is apparent nagging, nothing else." The email ends with a demand to compare and contrast the teacher training at Dr. Phillips with teacher training at Hunter's Creek Middle School and Evans High School. The last words of the email are: "Thank you for your time spent on reading this email. I am looking forward to getting your responses to my questions ASAP." Ms. Parker's explanation for her charges of bias was only that she was a good teacher and, therefore, Dr. Knight must be picking on her. Section 1012.34(3)(c) and Article X, Section (B)(2) of the Contract between the School Board of Orange County and the Orange County Classroom Teachers Association impose a duty on Dr. Knight and Mr. Trochinski to evaluate the performance of teachers under their supervision, including Ms. Parker. This observation and assessment is not "nagging" or "bias." Ms. Parker's December 8, 2011, email about their observations was discourteous, disrespectful, uncooperative, and a display of temper. It interfered with her ability to perform her duties and the ability of Dr. Knight and Mr. Trochinski to effectively perform their duties. Ms. Parker's email also demonstrates a refusal to take responsibility for her own actions and statements. Ms. Parker's testimony about a later conversation with Ms. Knight affirmed the hostility to criticism and suggestions for improvement recorded in her email. One example is her lengthy answer, at page 430, line 16 of the Transcript, to the question "How long would she [Dr. Knight] come in to your class?" Ms. Parker's answer included this statement, with emphasis supplied: So--and then when she said that it doesn't coincide, I asked, Okay, Dr. Knight, for example you were in my class on December 5th, and you saw--and she wrote down, she had in her notes--that we were going to read and work with fluency based on the story The Birds. And she said, yes. I said, Then why do you say that my lesson plans do not coincide with what I was teaching? She said, Hum, I came in at the beginning and then I don't know what you were teaching. I said, Do you think that I wrote this agenda for the president or somebody else? I wrote for the students. I cannot just write the words and do something else. I don't know. It seems to me there is common sense here. Yeah. So she was just arguing. And her statements, I don't know. This statement was a display of temper, discourteous, disrespectful, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. Because of the December 8, 2011, email, Dr. Knight held a conference with Ms. Parker on December 9, 2011, about the email. Dr. Knight explained what was wrong with the email. She also advised Ms. Parker of the importance of being careful when writing emails because of the risks that a writer may not be as polite as they would be in a personal conversation and the risk that emails may be written and sent when emotions are running high. Ms. Parker reiterated her claims that all criticisms were due to bias. Ms. Parker interrupted Dr. Knight and said "Let's have a dialogue not a monologue." During the meeting of December 8, 2012, Ms. Parker did not acknowledge any validity to any of the concerns raised. She did, however, complain about training and lack of support. During this meeting, Ms. Parker communicated in person as she had in the email. She again demonstrated an inability to accept criticism and responsibility for her own actions. She was again discourteous, disrespectful, and uncooperative and displayed her temper. Ms. Parker's behavior interfered with her ability to perform her duties and the ability of Dr. Knight to perform her duties. Ms. Parker's approach was the same during her testimony. She testified that she had a right to tell an administrator to stop talking and let her speak. Ms. Parker impatiently described the December 8 meeting as useless. In her words starting at page 556, line 17: Yes, I can [tell an administrator that she should stop talking]. Because she was starting to say again and again, and I have no time to sit the whole planning period without any production, without any use, because my planning period I'd rather spend with students. By the way, at that meeting, I wanted to stand up and leave her office, because she didn't want to listen to me. She was only talking, talking, talking. For monologue, she could send me an e-mail. If it was a dialogue--meeting is meant for dialogue, for exchanging ideas, for talking, to discussing [sic] things, but she was just talking and talking. That's why I said, Let us have dialogue, not monologue, because she was speaking 15 minutes. Later in her testimony, Ms. Parker dismisses Dr. Knight's efforts to explain what Ms. Parker had done wrong and suggest improvements this way: "She brought me there to discuss things. Instead of discussion, she began to say boring things, repeating." Ms. Parker's testimony reflected the confrontational and belligerent approach manifested in her emails and conversations during her employment. She repeatedly expressed her view of her superiority as a teacher and her view that all criticisms were unfounded and unfair. She never acknowledged even a possibility that any of her actions or communications were improper. "Elements of Literature" Communications On January 5, 2012, Ms. Parker lunched with fellow teacher Brandi Boone and two other teachers. During lunch, Ms. Parker said that she did not use the "Elements of Literature" curriculum book and had not used it since the beginning of the year, because it was "too difficult" for her students. On January 11, 2012, Dr. Knight conducted an ESOL meeting to address aligning the ESOL curriculum with the general English curriculum. Having both general and ESOL students use the "Elements of Literature" curriculum was part of the school's required teaching strategy. During the meeting, Ms. Parker told Dr. Knight that she used the "Elements of Literature" curriculum and that she loved it. On January 12, 2012, Ms. Boone approached Dr. Knight and told Dr. Knight about Ms. Parker's statement during the January 5, 2012, lunch meeting that she was not using "Elements of Literature" because it was too difficult for her students. On January 17, 2012, Dr. Knight called Ms. Parker in to her office. Assistant Principal Alisa Dorsett was present. During the meeting Dr. Knight asked Ms. Parker if she used "Elements of Literature." She asked because of her observations of Ms. Parker's classroom teaching and Ms. Boone's statements. Ms. Parker said that she was. Because of what she had observed and what Ms. Boone had reported, Dr. Knight questioned the accuracy of this. She told Ms. Parker she thought that Ms. Parker was "being less than honest." This was a fair observation based on the information known to Dr. Knight. During the meeting, Ms. Parker repeatedly got up and tried to go behind Dr. Knight's desk to show her documents. Dr. Knight repeatedly had to ask Ms. Parker to sit down. At the end of the meeting, Ms. Parker told Dr. Knight that "If you want to go to court, we can go to court." Ms. Parker testified that she said: "Shall we go to court? We'll go to court." Regardless of the exact wording, the gist of the comment is the same. The comment, like Ms. Parker's conduct in the meeting, was a combative, discourteous, threatening, and uncooperative response to Dr. Knight's attempt to address a professional issue. The comment and Ms. Parker's behavior in the meeting also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. It is not the fact that Ms. Parker wanted to exercise her legal rights that is improper. It is the way she expressed it that is improper. Ms. Parker's repeated attempts to move behind Dr. Knight's desk were also combative, discourteous, threatening, and uncooperative. Emails of January 17 and 18 After the January 17 meeting, Ms. Parker wrote emails to Dr. Knight and Ms. Dorsett. In her January 17 email to Ms. Dorsett, Ms. Parker asked Ms. Dorsett to write in her notes that Dr. Knight told Ms. Parker that she was a dishonest person and that Ms. Parker had lied during the ESOL meeting. Ms. Dorsett replied that she would write that Ms. Parker had asked to have that statement included in her notes. But Ms. Dorsett testified that she did not agree that the requested additions were accurate. Ms. Parker sent another email to Dr. Knight on January 18, 2012, in which she said that Ms. Dorsett had not responded to the January 17 email. Ms. Parker then asked in the email, "So who is dishonest then?" The statement is discourteous, disrespectful, a display of temper, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight and Ms. Dorsett to perform their duties. Communications with Ms. Boone On Sunday, January 22, 2012, at 12:49 a.m., Ms. Parker sent Ms. Boone an email. In it, Ms. Parker accused Ms. Boone of telling Dr. Knight that she grouped her students by ethnicities. Ms. Parker, who suspected but had not confirmed that Ms. Boone told Dr. Knight that she said she did not use "Elements of Literature," went on to discuss her usage of "Elements of Literature." The email concluded: "My colleagues who create slanders will be really upset when investigation starts. According to The Principles of Professional Conduct, 'the educator shall maintain honesty in all professional dealings.' You have to be honest and tell the truth. You must take responsibility for your words and actions." The statement was threatening. Ms. Parker intended to convey to Ms. Boone that she would sue her for slander. Exercising your legal rights, including in a work place context, is not inherently improper. But Ms. Parker's threat of investigations and slander suits reduced her ability to effectively perform her duties, reduced Ms. Boone's ability to effectively perform her duties, harassed Ms. Boone, created a hostile and intimidating environment, and was bullying. Ms. Boone replied in an email of January 22, 2012, at 8:24 p.m. She denied accusing Ms. Parker of grouping students by ethnicity. She acknowledged providing information to Dr. Knight and that she was appalled when Ms. Parker told Dr. Knight she used and loved "Elements of Literature." In a second email a few minutes later, Ms. Boone said that she wanted Dr. Knight present for any further conversations between her and Ms. Parker about students or Ms. Parker's claims. Ms. Parker responded with a lengthy email that included the following series of sarcastic and combative statements. You showed yourself a very disrespectful person accusing me, a veteran teacher, who is 2 times older than you, who has worked 34 years at school. I also noticed that you have hearing problems. Am I right? Maybe you misunderstood something and jumped to conclusions? Besides, I love humor. Boring people do not understand it as a rule. And guess what? I have a lot of students' works done during the first semester based on "Elements of Literature", and I can show them to everybody at any time. I showed them to Dr. Knight. Why should I tell [sic] that I did not work with EL??? You saw my students' projects too. In your class there are no students' works at all! To sum up, you violated the Principles of Professional Conduct: Obligation to the Profession of Education (d) and (e) because you created offensive environment and made a malicious statement about your colleague (me). Now you will have to take responsibility for your words. After your actions I have no desire to communicate with you at all, but because of working conditions I will have to have "that pleasure", only in the presence of Rita or administrator. Ms. Parker's statements in these email communications harassed Ms. Boone and created a hostile, intimidating, and oppressive environment. The statements were discourteous and interfered with the ability of Ms. Parker and Ms. Boone to perform their duties. Midpoint Evaluation Dr. Knight met with Ms. Parker on January 19, 2012, to discuss her midpoint evaluation. Assistant Principal Bridget Bresk attended as a witness. During the meeting, Dr. Knight gave Ms. Parker a direct and reasonable order to acknowledge that she had received the written mid-point evaluation. Ms. Parker had not acknowledged receipt as requested when she was provided the evaluation. The acknowledgement form only asked the teacher to acknowledge receiving the evaluation. It did not state or imply that the teacher agreed with the evaluation. Ms. Parker refused. Ms. Parker said that she would not acknowledge receipt of the evaluation because she did not agree with it. Dr. Knight explained that the acknowledgement simply stated that Ms. Parker had received it and did not say that Ms. Parker agreed with the evaluation. Ms. Parker still refused. She told Dr. Knight that "acknowledge" means to agree and that Dr. Knight "should look it up yourself." Ms. Parker intentionally refused to obey a reasonable direct order given by her direct supervisor, Dr. Knight. Ms. Parker was also discourteous and uncooperative. Her conduct impaired Dr. Knight's ability to perform her duties. During the meeting, when they discussed what Ms. Parker needed to improve, Ms. Parker told Dr. Knight "sorry for breathing." She sought to justify the comment by saying it was an "American expression." Ms. Parker also told Dr. Knight her comments after the classroom observation about celebrating student success were "ridiculous." At the meeting's end, Ms. Parker told Dr. Knight one of the following: "I have people who will take care of me and I have people who will take care of you"; "There are people who will take care of me and take care of you."; or "There are people who will take care of me and you." There are no material differences between the three statements. Any version is a threatening and bullying statement. Ms. Parker's argument that she was only stating the obvious, that she could file a grievance, is not persuasive. She made no reference to a grievance in the meeting. Her words plainly convey a darker impression than "we may have to agree to disagree and resolve our disagreements legally" or "I will file a grievance about this." The preceding comments were threatening, bullying, discourteous, disrespectful, and uncooperative. Also, throughout the meeting, Ms. Parker's conduct impaired the ability of Dr. Knight and Ms. Parker to perform their duties. After the meeting, Ms. Parker sent Dr. Knight two emails. The first, sent at 5:20 p.m., included the following two sarcastic statements: I appreciate your close attention to me lately. I wish you started to analyze planning problems since the beginning of the school year, but better late than never. Well, I think you are very brave. I wonder if you are aware of the fact that Code of Civility refers to all OCPS employees, not only teachers. The second, sent 30 minutes later, included the two statements that follow. Referring to Dr. Knight's concerns about whether Ms. Parker was using the "Elements of Literature," Ms. Parker said: It proves again and again your hostile biased attitude. Earlier or later, we all have to pay for what we have done. . . . (Unknown author). Ms. Parker's original explanation that she was paraphrasing a biblical passage and her later explanation that she was quoting Oscar Wilde are neither persuasive nor material. The source of the quote does not alter the fact that the statement and the entire email are discourteous, disrespectful, bullying, and uncooperative. Grievance Meeting On January 20, 2012, Ms. Parker submitted a grievance to the Board's employee relations office. Carianne Reggio, the Equal Employment Opportunity Officer and Equity Officer for the Orange County Schools, investigated the grievance. Ms. Reggio met with Ms. Parker on March 20, 2012, to advise her of the result of the investigation. During the meeting Ms. Parker displayed, as she had in her meetings with Dr. Knight, what the union representative described as confidence "that borders on what we might perceive as arrogance." During the meeting, Ms. Parker gave no indication that she acknowledged that anything she had said or done during the communications and meetings from December 2011 forward was inappropriate or improper. She maintained that same position during her testimony. During the three-hour meeting, Ms. Reggio reviewed her findings of no violations with Ms. Parker and considered Ms. Parker's reactions and complaints. Ms. Parker was very upset. While Ms. Reggio was walking Ms. Parker to the elevator, Ms. Parker said she could see why teachers resort to extreme measures and shoot up school systems. This was a reference to a recent murder/suicide in Jacksonville, Florida, where a teacher shot the headmistress of his school and then killed himself. Ms. Parker did not accompany this statement with any gestures, a display of a weapon, or any more specific statement. The statement was crass, disquieting, and inappropriate. But it was not a threat. On March 6, 2012, the Superintendent of Schools recommended termination of Ms. Parker's contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order finding that there is just cause to terminate Ms. Parker's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 23rd day of October, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of October, 2012.
The Issue The issue is whether the district school board has just cause to dismiss an instructional employee for just cause, where it has alleged that the teacher engaged in verbal altercations with students, calling them names and attempting to provoke them to anger.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Delucia’s employer. As an instructional employee of the School Board, for which he has worked for more than 15 years, Delucia holds a professional services contract that automatically renews each year and may be terminated only for just cause. During the relevant school year, 2019-2020, Delucia was assigned to Piper High School, where he taught Digital Information Technology. In this proceeding, the School Board seeks to terminate Delucia’s employment for just cause based on two similar, but unrelated classroom incidents, which occurred, respectively, on September 26, 2019, and November 14, 2019. Both situations are simple and straightforward, involving discrete teacher-student confrontations of short duration. The first incident involved a ninth-grade student named K.L. Here is what the School Board alleges took place on September 26, 2019: K.L. was out of his seat during class. Delucia approached the student and stated to K.L., “come here dummy.” Confused, K.L. asked Delucia what he said and Delucia replied, “come here dummy” and “idiot” to K.L. Upon the repetition of the statements to K.L., the verbal confrontation escalated. K.L. told Delucia to “watch his mouth” while Delucia kept repeating the statement “you are a dummy” to K.L., while laughing. On the day of the incident, K.L. gave the school police a written statement describing the “altercation” (as the School Board calls it) in his own words: I was up out of my seat, and Mr. Delucia said “come here dummy.” I ask[ed] him to repeat what he said and he said the same “come here dummy.” I told him to watch your mouth and [he] kept repeating “you are a dummy” many times and I lost my temper and I said next time [you] say that I am going to knock the glasses off your face. Comparison of K.L.’s statement1 to the School Board’s allegations shows that the School Board not only accepted K.L.’s testimony as a credible account, but also cleaned him up as a witness, omitting the undisputed fact that K.L. threatened (in more violent language than his statement admits) to hit Delucia in the face. Delucia wrote a contemporaneous description of the event, too, in a Student Referral Form accusing K.L. of committing disciplinable conduct. This account, which Delucia submitted at 10:32 a.m. on September 26, 2019, immediately after the incident occurred, reads as follows: Student [K.L.] was out of his seat all class. He was told to sit down numerous times. He is constantly touching other students. Then student was argumentative. Then student threatened [me, saying], “I will smack the fuck out of you,” when told to sit down and be quiet … . Then he walked out of class. Out of assigned area, insubordination, disruptive to class and threatening teacher. 1 K.L’s contemporaneous statement, like that, as well, of the student involved in the other incident, Z.L., was made not only to inculpate Delucia, but also (it is reasonable to infer) to exculpate himself, for K.L. knew by then that he was in trouble over the confrontation. The student in such a situation has both the motive and the opportunity to stick it to the teacher—and he has little or nothing to lose by doing so. While these factors, of themselves, do not necessarily discredit the students’ statements, it should be recognized that K.L. and Z.L. are not disinterested eyewitnesses; to the contrary, each was well-placed to make self- serving statements to the school police, which the undersigned has kept in mind in making credibility determinations. Delucia’s statement leaves out the undisputed fact that he (Delucia) used the word “dummy” in this transaction with K.L.2 The dispute regarding Delucia’s use of this word is not over whether he uttered it—he did—but, rather, about whether Delucia intended to disparage K.L.’s intellectual abilities when he said it. Based on conflicting evidence, the following findings are made. The incident involving K.L. began with K.L.’s misbehavior, i.e., being out of his seat and goofing around with classmates, instead of sitting at his desk and working on his assignment. Delucia told K.L. to sit down, which was a reasonable exercise of authority. The student refused to comply, however, choosing instead to give the teacher backtalk. Delucia directed K.L. to stop acting like a dummy. K.L. responded as if Delucia had insulted his intellect— but he had not. Based on the greater weight of the persuasive evidence, it is found that, more likely than not, Delucia merely instructed to K.L. to quit playing the fool, which was the meaning of the word “dummy” in this context.3 It is likely, moreover, that K.L. was aware of this at the time but 2 Delucia’s contemporaneous statements in this referral and a later one relating to the other alleged victim, student Z.L., were made not only when the respective incidents, which had occurred minutes earlier, were fresh in the teacher’s mind, but also prior to any dispute regarding whether the teacher had committed a disciplinable offense. It is unlikely, therefore, that Delucia wrote these statements in hopes of getting himself out of trouble. Moreover, the fact that these statements were written in the heat of the moment, before time for reflection, cuts against the inference that Delucia was launching preemptive strikes—that is, going on offense in anticipation of the students’ reporting him. Indeed, it seems more likely that a teacher in Delucia’s shoes, if he had a guilty mind about the incidents, would not have written the referrals, the better to let the matters drop. These factors are indicia of reliability, albeit not guarantees, which have been considered in evaluating the credibility of Delucia’s contemporaneous statements. 3 To underscore the difference, imagine a teacher telling the class that a student who has just given the wrong answer to a problem is a dummy. In that context, the remark clearly would impugn the student’s intelligence, in an insulting and embarrassing fashion to boot. Such an act of cruelty probably would warrant discipline against the teacher absent extenuating circumstances. The bottom line is that “dummy” is not so intrinsically disparaging that bad intent may be inferred without knowing how it was used; its utterance, therefore, should not result in the speaker’s termination, irrespective of motive, intent, and context. seized on Delucia’s maladroit expression4 as grounds for further disruption and defiance. K.L. escalated the situation by advancing on the teacher’s desk, leaning into Delucia’s personal space, and threatening to “slap” or “smack” the teacher’s “fucking” glasses off his face. While there is some slight disagreement between witnesses as to K.L.’s exact words, the evidence is overwhelming that K.L. threatened to strike Delucia in the face, and that he menacingly used the angry F-word as an intensifier in doing so. The school administration obviously believed Delucia’s testimony that K.L. had dropped the F-bomb because K.L. was later suspended for two days over his use of profanity during the incident.5 After K.L. threatened to hit Delucia, the teacher called security for assistance. Before the security guard could arrive, however, K.L. left the classroom, and the incident ended. The School Board presented some evidence that, as K.L. walked out, Delucia followed him and tauntingly called him a “pussy” to provoke a fistfight. This strikes the undersigned as essentially a separate charge, which was not pleaded in the Amended Administrative Complaint. In any event, the persuasive evidence fails to establish these unpleaded allegations by the greater weight, and thus it is not found that Delucia tried to goad K.L. into fighting by calling him a “pussy.” 4 Delucia has acknowledged that he should have used different language. This practically goes without saying. Obviously, to avoid unfortunate misunderstandings, teachers should refrain from using terms, like “dummy,” which have shades of meaning ranging from playful to insulting depending upon a multitude of social cues. 5 It is curious, however, that the School Board nevertheless credited K.L.’s description of Delucia’s conduct as more credible than the teacher’s own testimony in this regard, given that K.L.’s threat of violence against Delucia comes close to satisfying, if it does not meet, the definition of a criminal assault. See § 784.011(1), Fla. Stat. The fact that K.L. (unlike Delucia) arguably committed a misdemeanor offense during this confrontation casts doubt on K.L.’s reliability as a witness. At hearing, Delucia vented his frustration that the administration had failed to punish K.L. for perpetrating an intimidating threat of violence against a teacher in the classroom. To this, the undersigned adds his bewilderment that the School Board would hand a potentially dangerous student like K.L. the power to cost a teacher his livelihood and possibly his career. The incident of November 14, 2019, involved a student named Z.L., who came to class that day without his student identification badge, which is required for entry pursuant to school policy. The School Board alleges in its Amended Administrative Complaint the following material facts: Delucia asked student Z.L. to put his student identification on his person. Z.L. was working on a class assignment and did not respond immediately. Delucia then stated to Z.L., “Now you brat.” Delucia further stated, “If you would listen and stop being stupid you would hear me.” Confused, Z.L. stated, “I’m stupid?” To which Delucia replied, “Yes, look how stupid you look, little brat.” Delucia then directed Z.L. to leave his classroom. Z.L. obliged and started to leave the classroom. As Z.L. was leaving the classroom, the argument escalated. Delucia confronted Z.L. and stated, “You’re nothing but a pussy.” When this was said, Z.L. confronted Delucia where further words were exchanged and Delucia dared Z.L. to hit him. Z.L. stated he would not hit Delucia. As such, while laughing, Delucia called Z.L. a “pussy” for not hitting him. Security had to be summoned to the classroom. Delucia wanted Z.L. arrested and in hand cuffs. The District’s allegations closely follow Z.L.’s contemporaneous account of the incident (and concomitantly reject Delucia’s). In his handwritten statement for the school police, dated November 14, 2019, Z.L. recalled: I was sitting down doing work then he said wheres your I.D. then i showed him it he said put it on I said OK then he said now you brat and i said one sec because I was typeing something and he said if you would listen and stop being stupid you would hear me and I said “im stupid?” and he said yes look how stupid you look. Then he kept arguing with me I said shut the fuck up. He said oh ok little brat then someone was talking to me then he said you wanna talk get out then i said ok when I was walking out he said “your nothing but a pussy” I said Im a what? then he kept moving up then he said “A pussy” then I went in his face then he said, “what you wanna do” then that’s it[.] At 9:35 a.m., right after the incident, Delucia submitted a Student Referral Form on Z.L., stating as grounds, the following: Student [Z.L.] tried to come into class without an ID. Told to get one. He argued with me. Then when he came in he was told to put it on. He refused. He was told to stop whining about it and put it on. Then he said, “If you don’t shut the fuck up I will slap the fuck out of you.” [I] called for security and student kept disputing the class. I stood in the hallway and the student kept talking. Then I held the door open waiting for security and the student said, “You bitch ass nigga, I will slap the fuck out of you. You are a pussy.” I heard about you and you are on probation. Then he said, “what the fuck are you looking at?” I said, “Nothing.” He then got in my face under the camera and in front of the security guard, Rod. He kept getting in my face about two inches away and cursing and threatening me. Rod took him away. Z.L. was given a five-day suspension for using profanity in front of a staff member. Based on the conflicting evidence presented, it is found that Z.L. arrived at class on November 14, 2019, without his ID badge. Following school policy, Delucia refused to allow Z.L. to enter the classroom without identification. The teacher instructed Z.L. to leave and return with a temporary ID sticker. Z.L. grumbled about this, arguing that he would be late for class if required to obtain a temporary ID, and that his other teachers did not enforce the ID requirement. Z.L. ultimately complied, however, and departed. When Z.L. returned, he held a temporary ID sticker in his hand but refused to peel off its paper backing and put the sticker on his shirt, which is how the temporary ID is supposed to be worn. Delucia directed Z.L. to wear the temporary ID properly, but Z.L. obstinately refused to comply, forcing Delucia to repeat this reasonable command several times, to no avail. Z.L. defiantly informed Delucia that he would put the sticker on when he was ready, as opposed to when the teacher wanted him to do so. Delucia advised Z.L. that he would call security and have the student removed for noncompliance with the ID rule and warned Z.L. not to make a stupid decision. At this point, Z.L. erupted and began threating Delucia with violence. The undersigned finds that Delucia’s statement in the Student Referral Form, as set forth above in paragraph 12, credibly records Z.L.’s abusive and vulgar language. Like K.L.’s threatening behavior in the earlier incident, Z.L.’s combative conduct arguably constituted a criminal assault. It is understandable, therefore, that Delucia wanted Z.L. to be arrested. Harder to understand is why the School Board would regard Delucia’s justifiable desire to see Z.L. brought to justice as grounds for disciplining the teacher. The persuasive evidence does not establish, by the greater weight, that Delucia called Z.L. a “pussy,” tried to pick a fight with the student, dared Z.L. to hit him, or laughed about the situation. To the contrary, the likelihood is that Z.L. attributed his own conduct to, and projected his own motives on, the real victim (Delucia), and the School Board took the ball and ran with it. DETERMINATION OF ULTIMATE FACT The School Board has failed to prove its allegations against Delucia by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Eric Delucia of all charges brought against him in this proceeding, reinstating him to his teaching position, and awarding Delucia back salary and benefits as required under section 1012.33(6)(a). DONE AND ENTERED this 29th day of March, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner has just cause to dismiss Respondent for misusing School District technology, harassing, intimidating or bullying School Board employees, committing professional or ethical misconduct or gross insubordination, or failing to follow a policy, rule or directive.
Findings Of Fact Respondent has been employed by the Palm Beach County School Board from 1978 through May 2, 2012; for nearly all of these 24 years, she has been employed as a classroom teacher. Respondent holds a continuing contract, although the parties have stipulated that this is a "just cause" case, pursuant to the collective bargaining agreement between Petitioner and the Palm Beach County Classroom Teachers Association, July 1, 2011- June 30, 2014 (CBA). CBA, Article II, Section M.1 authorizes dismissal of an instructional employee if Petitioner proves just cause by clear and convincing evidence. (In an abundance of caution, for reasons explained in the Conclusions of Law, this Recommended Order relies on the continuing contract for the limited grounds for dismissal and the CBA for the clear and convincing standard of proof for dismissal.) Petitioner has previously transmitted to the Division of Administrative Hearings (DOAH) two adverse employment proceedings against Respondent. In DOAH Case 10-0371 (Prudente I), Petitioner proposed, in December 2009, to suspend Respondent without pay for ten days for using School District email to send to her coworkers emails that, among other things, depicted a presidential candidate in a negative fashion. In DOAH Case No. 10-10835 (Prudente II), Petitioner proposed the termination of Respondent for sending to her coworkers inappropriate emails under circumstances that established gross insubordination and harassment, intimidation, and bullying of other School Board employees. Prudente I covers acts and omissions from February 2007 through November 2008 (Tr. 186); Prudente II covers alleged acts and omissions from 2009 through June 30, 2010 (Tr. 189); and the present case covers acts and omissions from July 12, 2011 through February 2012 (Petition, paragraph 20, and Tr. 15, 20, 22, 27, and 150). After an administrative hearing in Prudente I, on January 24, 2011, DOAH Administrative Law Judge June C. McKinney issued a Recommended Order urging that the School Board enter a Final Order rescinding the proposed ten-day suspension and awarding Respondent back pay. After transmittal to DOAH, Prudente II was assigned to the undersigned Administrative Law Judge, but this case never went to hearing. By Settlement Agreement dated March 30, 2011, Respondent and Petitioner disposed of Prudente I and II. The Settlement Agreement provides for: a) Respondent to be suspended for ten days without pay; b) Petitioner to withdraw its exceptions and issue a Final Order adopting the Recommended Order in Prudente I; and c) the parties not to reopen Prudente II after it had been closed without prejudice. Given the adoption of the Prudente I Recommended Order, the basis for the ten-day suspension without pay must have been Prudente II, although this is unclear from the Settlement Agreement. The reference to back pay in the Prudente I Recommended Order implies that Respondent served her suspension prior to the November 2010 hearing. However, the record in the present case suggests otherwise. First, after the execution of the Settlement Agreement, Respondent served the ten-day suspension mentioned in the agreement; if she had already served the ten- day suspension that had been proposed in Prudente I, she presumably would have been credited for this suspension in the Settlement Agreement. Second, at the hearing, a discussion among counsel and the Administrative Law Judge suggested that the ten-day suspension ordered by the Settlement Agreement arose under Prudente II. (Tr. 190-93.) Although Prudente II is thus the source of prior discipline, which is relevant if Respondent is subject to discipline in the present case, Prudente I, not Prudente II, provides a source of facts that may be useful in the present case establishing, for instance, Respondent's state of mind or knowledge while sending the emails from July 12, 2011, through February 2012. By adopting the Prudente I Recommended Order, the School Board, in its Final Order, adopted the findings of Judge McKinney--many of which were unfavorable to Respondent--as well as her ultimate recommendation, which was, of course, favorable to Respondent. By contrast, Prudente II does not establish any facts because, prior to the hearing, the parties settled the case without admitting to any guilt. After serving her ten-day suspension without pay, Respondent resumed teaching duties on April 7, 2011. She received a temporary assignment at Dreyfoos High School for what remained of the 2010-11 school year. Undeterred by her recent suspension, Respondent quickly returned to her emailing ways. In May and June 2011, Respondent sent a series of rambling, sometimes-incoherent emails complaining of various forms of mistreatment directed to her. Respondent sent these emails to various persons, including members of the School Board, the Central Area superintendant, Ms. Gero, and an EEOC investigator. But Respondent's preferred recipient appears to have been Ms. Wellings, evidently due to her EEO responsibilities and Respondent's self-identification as a victim of employment discrimination. Respondent evidently had filed a discrimination complaint against Petitioner with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint appears to have alleged that Petitioner had failed, after the Settlement Agreement, to pay the back pay ordered by Judge McKinney in Prudente I; to reinstate certain medical, dental, and vision benefits; to grant Respondent a preference for her permanent teaching assignment at Dreyfoos; and to redress miscellaneous, earlier grievances. Appearing to have become dissatisfied with what she viewed as Petitioner's intransigence in the EEOC proceeding, Respondent evidently decided to bring pressure on Ms. Wellings by announcing her list of grievances directly or indirectly to third parties who, Respondent assumed, had some influence over Ms. Wellings. For example, on June 20, 2011, Respondent sent to Ms. Wellings, with copies to an EEOC representative and others, the following email: Please, DO NOT CONSIDER PBCSD DECEITFUL DENEEN WELLINGS EEO DISCRIMMINATION [sic], Retalliation [sic] and Legal Dept Cafeteria Style Misrepresentations with her Negligence & Failure to Follow EEO, Ethics & DOAH Judges' Recommended Orders she requested to overturn with Unethical Agreement Malpractices as she has written in her letter of June 13, 2011. On the same day, Respondent left a three-minute voicemail on the office telephone of Ms. Wellings. The voicemail began: Hello this is a message for the deceitful Deneen Wellings. This is Paula Prudente . . .. I have . . . sent an EEOC, an EEO and Ethics complaint and a pending lawsuit against you and you do not have a right to file a motion to dismiss it. You are not dismissed Deneen. You are very deceitful and you still have a pending lawsuit against you. . . . [Y]ou are not excused and you are not dismissed. . . . Give me my back pay for November, my health insurance and my reinstatement of my position at Dreyfoos School of the Arts, my ADA accommodation and you are going to have to cease and desist your cafeteria style of . . . law and agreements cause . . . you are very wrongful in your misrepresentations . . . you are very deceitful Deneen. I will also be out of town but . . . the lawsuit is still going against you. You are not dismissed. Thank you. The message continues, essentially restating the statements set forth above. When Ms. Wellings returned from vacation on July 12, 2012, and found the hostile email and voicemail of June 20 and other emails of similar tone, Ms. Wellings emailed Ms. Gero about Respondent. Ms. Wellings described the tone of the voicemail as "threatening" and the email and voicemail as "insulting and offensive." Ms. Wellings characterized the email as unprofessional and unethical because Respondent had provided false information about Ms. Wellings to School Board members and employees, Administrative Law Judges, and representatives of state and federal agencies. Ms. Wellings wanted Respondent to stop this "harassing behavior" and asked Ms. Gero to take whatever action she deemed necessary and appropriate. Listening to the June 20 voicemail, Ms. Gero agreed that the tone was "very threatening" and suspended Respondent's access to School District email. Since Respondent had been placed on temporary assignment, she was being supervised by Mr. Davis, so Ms. Gero referred the matter to him for further action. On the next day, Mr. Davis sent Respondent a Specific Incident Memorandum and Administrative Directive. Noting the confrontational nature of the email to Ms. Wellings and the copying of the email to School Board members and others, Mr. Davis's memorandum reminds Respondent of Petitioner Policy 3.29(10)(d), which states that School District email shall be used for School District business and shall not be used to send abusive, threatening, or harassing messages. Referring to the voicemail to Ms. Wellings, Mr. Davis's memorandum states that Respondent called Ms. Wellings names that were unprofessional, malicious, insulting, and demeaning. The memorandum reminds Respondent of Florida Administrative Code Rule 6B-1.006(5)(d), which prohibits engaging in harassment or discriminatory conduct that creates a hostile, intimidating, abusive, offensive, or oppressive environment, and Rule 6B-1.006(5)(e), which prohibits malicious or intentionally false statements about a colleague. The memorandum refers to Petitioner Policies 5.002, which prohibits threatening, insulting, or dehumanizing gestures that are severe or pervasive enough to create an intimidating, hostile, or offensive educational environment, and 3.02(4), which requires each employee to treat all individuals with respect and to create an environment of trust, respect, and nondiscrimination. Mr. Davis's memorandum concludes: You are hereby directed to cease any and all improper use of District Technology . . ..Further you are directed to interact with all School District Personnel in a respectful and professional manner, as required by [the] Policies and [rules] described herein, including School Board Policies 3.02 and 5.002 and 6B-1.006, F.A.C. Failure to abide by these directives will lead to the appropriate disciplinary action being taken against you. [Based upon the principle of progressive discipline contained in the CBA,] [a]s a provision of the Settlement Agreement [has already imposed] a ten day unpaid suspension[,] [t]herefore the next likely step, should you fail to adhere to this directive, may be Termination of Employment. It is understood that you have the right to file complaints with the appropriate authorities. However, you must adhere to School Board Policies and Directives and maintain professionalism. If you require assistance in this regard, I suggest that you direct communications regarding these matters through your attorney. Meanwhile, on July 1, 2011, Respondent had been assigned to teach at Spanish River High School. Shortly after Respondent's arrival at Spanish River, William Latson was assigned to the school to serve as the new principal. Almost immediately after assuming his new responsibilities at Respondent's new school, Mr. Latson began to receive odd emails from Respondent, suggesting that Ms. Gero's suspension of Respondent's access to School District email was short-lived. With copies to various third parties, again in an apparent attempt to bring pressure upon the main addressee, Respondent sent to Mr. Latson and others confrontational emails telling the addressees what they should and should not do. Mr. Latson was nonplused because Respondent's emails addressed to him were often unrelated to anything going on at the time and were filled with so many directives and complaints as to be incomprehensible. Mr. Latson directed Respondent to discontinue sending such emails, but Respondent ignored Mr. Latson's directive. To facilitate an investigation of an issue evidently unrelated to the present case, Mr. Latson, by letter dated September 20, 2011, reassigned Respondent to her residence, with pay, as of that date. The term of her reassignment was one day. For reasons also apparently unrelated to the present case, by letter dated October 10, 2011, the Chief of School Police informed Respondent that, until further notice, she had been reassigned to a temporary duty location at the transportation department call center, effective the next day. Respondent remained in this temporary assignment for the remainder of the timeframe relevant to the present case. The culmination of the email to Mr. Latson occurred on October 19, 2011. Responsible for delivering checks to various school employees, Mr. Latson sent emails to those employees who had not yet received their checks, including Respondent, inviting them to come by the office to pick them up or to provide mailing addresses where he could mail them. In her response, Respondent supplied her mailing address, but launched into a bewildering set of vitriolic directives, awkward references to herself in the third person, and head-turning claims that, at their most coherent, seem to confuse Mr. Latson with Ms. Wellings. The directives start with a demand not to refer to Respondent as "Mrs.," which is in fact my Mother's & Sisters in Law marriage Titles; they did not apply to work as Mrs. Prudente at PBCSD--they always lived in NY. . . . Please cease & desist your Misrepresentations on my status & respectfully remove your unsubstantiated, defamatory opinions & hearsay from my Records & confirm corrections to PB Post & Sentinal [sic] Newspapers/TV & Radio Media Broadcasts. . . . "Please Resolve & Replace Misrepresentations with Ethical Corrections Officially Stated & Filed in Dept of Admin Hearing Judges McKinney & Meale's Decisions & EEOC Federal Investigators, Specifically: "PBCSD Petitions are inadequate & failed to prove insubordination of the teacher, Ms. Prudente. Rescind the 10 day suspension with 10 days Backpay." Petitioner has not pleaded the Wellings email and voicemail, which precede the start date of July 1, 2011, and the Latson emails as grounds for dismissal in the present case. But these communications nonetheless serve at least two purposes. They establish that the emails described below were not isolated instances and tend to prove that Respondent's use of School District email was intentionally insubordinate and consciously harassing. The emails that fall within the timeframe of July 12, 2011, through February 2012 concern Respondent's participation in the School District's wellness program. The wellness program offered eligible employees a discount of $50 from their monthly premium for medical insurance during the 2011-12 school year, provided they met certain criteria. The timeframe for satisfying the eligibility criteria for this $500 benefit ran from January 1 through August 1, 2011. A School District flyer announcing the wellness program identifies three eligibility criteria: a biometric health screening, an online personal health assessment, and an online tobacco user status form. Clearly stating that interested employees must complete all three criteria by August 1, 2011, the flyer warns that the program sponsor--United Health Care--is unable to verify completion of these criteria until the start of open enrollment in the fall of 2011. It is neither clear, nor particularly important, which of these criteria that Respondent failed to submit on time. According to one of her emails, Respondent failed to timely submit the health screening and personal health assessment. Other emails suggest that Respondent failed to timely submit only the health screening. Shortly before the midnight deadline, on the evening of July 31, Respondent tried to submit the needed form or forms online, but, due to some problems, she was unable to do so. It is possible that the error lie with Respondent's computer or with Petitioner's software program, but, again, this fact is not particularly important. In any event, due to the failure of Respondent to submit one or two of the required three forms, Petitioner's benefits department declined to credit Respondent with the $500 premium discount that she sought for the 2012-13 school year. When Respondent learned in the fall of 2011 that she had not qualified for the $500 benefit, she sent an email dated November 9, 2011, to Ms. Howard. In the email, Respondent claimed that she had experienced a "computer glitch" when trying to submit her paperwork online. Respondent's November 9 email is characterized by a measured tone and the lack of any inappropriate commentary. Unlike nearly all of Respondent's other emails, copies are not provided to third parties. This email, as well as all that follow it, were sent using the School District email system. On the next day, Ms. Howard replied by email to Respondent that she was unable to make an exception for Respondent. Ms. Howard added, though, that Respondent could use the late-filed health assessment form toward her "2012 point requirements." On November 11, 2011, Respondent sent an email in reply to Ms. Howard. In a more confrontational tone than the preceding email, Respondent's email starts: How humiliating, UNflexible and Unfair to NOT reciprocate PBCSC Professional Health Benefits Courtesy, regardless of my 33 years of A+ Classroom Teaching, my professional flexible years of health insurance computer glitches to be reciprocated with PBSC UNflexible Health Benefits Blocked with On- Going Unfair EEO ADA Labor Practices & Penalties for Veteran A+ Teachers. The November 11 email concludes with a request to cancel the $50 monthly "Penalties for the UNFAIR PBCSD 70 minute glitch after midnight glitch OR cancel my Health Insurance Benefits so I can look for an ETHICAL NON-Discriminatory Health Ins Provider." In closing, Respondent struck a more reasonable tone, as she concluded: "I always appreciate your professional courtesy and consideration as I have also provided A+ to PBCSD since 1978." By email dated on the morning of November 14 to Ms. Howard, a couple of union representatives, and Respondent's attorney, Respondent essentially restated the requests contained in the November 11 email. In an afternoon email on the same day, though, Respondent's tone became more strident and more confusing, as she addressed the "computer glitch" that supposedly prevented her timely filing of the wellness program form or forms and another issue involving benefits. This email was almost entirely in capital letters and boldface. By email dated November 17 to Ms. Gero with copies to, among others, Respondent's attorney, Respondent addressed several issues. As to the wellness program, the email states: Diane Howard . . . willfully neglected my requests to correct the Google Glitched Date & blocked me from UHC Benefits & August 1st 50 Question monthly $50 Smoking Survey discount due to another frustrating Google Glitch. Fri., Nov 18 will be my final request for all parties to make corrections for Compensation w/o ADA Age discrimmination [sic]. Not hearing from Ms. Howard, Respondent sent several more emails to various recipients, such as her attorney, Ms. Gero, and, less frequently, Ms. Howard. These emails complained about the "computer glitch" and one or two other benefits issues that she had raised. Interspersed among these emails are occasional references to Respondent's EEOC case and EEOC complaints that she has filed over the years. A couple of emails refer to a School District police investigator's "promise" to contact Respondent to discuss her eligibility for the wellness program's monthly discount. The police investigator became involved when he was summoned in mid-November to the benefits office where Respondent was loudly demanding that she be allowed to participate in the wellness program. To mollify Respondent, the investigator, who was the same investigator who had handled Respondent's case in Prudente I, told Respondent that he would help her set up an appointment for the following week. Respondent furnished the investigator a copy of some paperwork that she said supported her claim of unfair treatment in terms of her employee benefits. Up to this point, the tone of Respondent's post- November 10 emails betrays more confusion than anger. It is unclear why she thought that a police investigator, whose responsibilities obviously do not include employee benefits, would help her secure the $500 premium discount, but it is perfectly clear that Respondent believed that he would do so. On November 22, 2011, Ms. Howard replied to several emails that Respondent had sent her, all in November. Ms. Howard's email states that she had previously told Respondent that she could not make an exception for her, but Respondent "continued to send these confusing, rambling, unprofessional and unethical emails to me and my staff, while copying [the teachers' union] and many other people." Ms. Howard's email states that Respondent was "highly disruptive" when she appeared in the benefits office on November 18 and concludes: Please stop sending these emails as they are offensive, threatening, harassing and insulting. Also do not come back into this office as you have been here 3 times already and we have repeated our response three times. . . . To be very clear, our response is: If you have medical bills that are not being paid by our health carrier, United, you need to fax these to our onsite United Healthcare representation [name and phone number omitted]. The annual enrollment period ended Nov 18, 2011. You were able to go online anytime during a three week period and make your benefit selections for 2012. Our position is that you did not meet the requirements in order to comply with the [wellness-program discount.] Therefore you are not eligible for the premium discount in 2012. You may complete the requirements in 2012, by July 31, 2012, and then you will be eligible for the discount in 2013. The online health assessment that you completed on August 2, 2011, will apply towards the fulfillment of the requirements for the 2013 premium discount. To restate, do not continue to call, visit or send emails on these same issues. I find them offensive, insulting and harassing. By reply email later the same day to Ms. Howard, with a copy to Ms. Gero, Respondent stated: Thank you for re-confirming your offensive opinions, false & abusive allegations against me as your choice to make threatening & confusing replies which have continued to frustrate me again today. I repeatedly requested your support assistance for appropriate annual adjustments [to Respondent's other benefits issue.] I never requested your humiliating misrepresented emails & phone call replies to me whenever I request sincere support assistance. I am constantly intimidated by your PBCSD Admin' Depts insulting, and inappropriate threatening letters, emails & phonecall responses 'including termination' because I have filed requests your Sworn Oath to Ethcal [sic] EEO HR Compliance. Your false allegations and misrepresentations are demonstrably contradictory to my A+ Appreciated, Awarded & Honored Professional 33 years of Classroom Excellence, which I am equally deserving of your reciprocal Ethical, EEO ER HR ADA & Ins Benefits Support. Your wrongful, rude, retalliative [sic] letters, emails & phonecall responses with Misrepresented false allegations for my requesting your consideration, support & advise [sic] is an ineffective and inflammatory excuse for your disgraceful Misconduct. The next day, someone, probably Ms. Gero, forwarded to Respondent information about Petitioner's employee assistance program (EAP). Nine days later, Respondent replied by email to Ms. Gero, Mr. Howard, Ms. Wellings, and Mr. Davis, thanking them for sending her the EAP information, but adding: By the Way, Please help me to appropriate reinstate and reduce my documented 2009- 2010-2011 EAP Diagnosed Manic Stress which was demonstrably induced & worsened by PBCSD workplace & District office Administrators whom have Google-Glitched or denyed [sic] and/or blocked me from continuing my Highly Qualified A+ Merit Teaching career with Equal Employment HR ER Opportunity, Voluntary transfer positions/applications, ADA Accommodations, and most importantly to reimburse/reinstate my earned & deserved United Health Care Medical, Dental & Vision Benefits without the $50 Smoker's Penalty in the New People Soft Google Glitch (as I have appropriately earned and updated annually over the last 33 years in PBCSD). Please reply & mail my DOAH Judge Recommended Order [sic] to Rescind the 10 days Nov 2010 Suspension with 10 days Backpaycheck, since My case was dismissed & Closed without Prejudice because PBCSD Failed to prove the Teacher's Insubordination (Please remove your defamatory Misrepresentations & unsubstantiated False Allegations."[)] On December 2, the interim executive director of the union, Tony Hernandez, informed local union representatives that teachers would need to sign new contracts by December 16. On December 5, Respondent sent an email to Mr. Hernandez about signing a new contract and addressing some aspect of her employee-benefits claims, possibly the appeal that is discussed below. Later the same day, Melinda Wong, Petitioner's Director of Human Resources Customer Relations, sent an email to Respondent advising her that she was under a still-valid continuing contract, which she had signed in January 1982, so she would not be receiving a contract that year. Ms. Wong added that she did not have any knowledge about the benefits appeal, so she could not respond to that part of Respondent's email. On December 6, Respondent sent a reply email to Ms. Wong, with copies to Ms. Howard, Ms. Gero, and Mr. Hernandez, thanking Ms. Wong for her "prompt & professional" reply. This email states, "fyi," that the School District's imposition of unfair, excessive $50 monthly charges & willful complacency to make corrections on hundreds of New Insurance Surveys/Non- Smokers--regardless of repeated requests & reports to UHC [United Healthcare]/Employee Benefits Directors & Classroom Teachers Association Offices. Watch TV News Investigations coverage today on . . . Channel 5. I informed UHC & Risk Mgt that our PBCSD Tech Support IT upstairs (specifically, a few of our former JILHS Tech Academy students) can fairly resolve PBCSD UHC Risk Mgt Survey Gli8tches in less than 10 minutes-- Whomever [sic] does not make professional efforts to offer sensible Employee Solutions is part of the on-going problems. In early December, an automated email notified School District employees that the benefits enrollment period had ended and they could view their choices online. In response, on December 7, Respondent emailed Ms. Howard, a staffperson in Ms. Howard's department, Ms. Gero and Ms. Wong asking for their help because the deadline for appeals was December 9, and she had to address the "computer glitch" that had prevented her from receiving the $500 premium discount and another employee- benefits problem. This email thanks the recipients for their anticipated assistance. When no one responded, Respondent re- sent this email on December 8, adding her attorney to the recipients. On December 22, Ms. Howard sent an email to Respondent and apparently other similarly situated employees: Your appeal for the Wellness rewards credit was not able to be granted. We are sorry the decision could not be more favorable. You will receive information in the mail in January about the requirements to be completed in 2012 for the discount to be applied in 2013. We will have [benefits] representatives available to sit with employees at their work sites from Jan 24 to Feb 18, 2012. They can assist you in navigating the myuhc site so that you will be able to successfully complete the requirements in 2012 for the discount in 2013. Please be sure to follow the instructions in the home mailing you will receive in January if you would like an appointment with one of thes [sic] representatives. Also we communicate benefits information throughout the year by emails from "Benefits Buzz" so be sure to look for them and read them. Again we are sorry that our decision could not be more favorable. To this email, Respondent responded, the same day, by email: As we all know, For 33 years I have promptly and professionally achieved A+ Merited School Awards and submitted by Lab Corp Bloodwork and Survey for Wellness Rewards again with [my attorney] from last Nov 2010 through December 2011 and re-submitted again from July 15 through August 1, 2011 on Google Glitched People Soft & UHC Self Service WebSites, [sic] However, PBCSD Benefits/Risk Management/UHC willfully continues to BLOCK & GLITCH & DENY my Payroll Deductions and Out of Pocket Expenses & Appeals in order to receive my Professional Health Benefits over this past year Nov 2010-Dec 2011. Please APPROPRIATELY RE-SUBMIT and CREDIT my HEALTH CARE WITHOUT the PBCSD $50 MONTHLY PENALTY SCAM to United Health Care and Risk Management Benefits Directors, which UI have also reported to Elected School Board Officials, DOJ/EEOC Federal Investigator and [the website of a labor lawyer]. (Respondent's reference to a "scam" may be connected to a warning email that Respondent and other School District employees had received concerning an online scam supposedly from the "College Board"--a warning that prompted a brief response by Respondent suggesting that the School District IT person add to the list of scams the "computer glitch" scam.) On January 10, 2012, Respondent sent another email to Ms. Wellings, Ms. Gero, Ms. Howard, and her attorney demanding the $50 monthly discount. Although the entire email is underlined and possibly in boldface, it is not inappropriate or confrontational in tone. The addition of Ms. Wellings appears to be due to Respondent's statement that she will "visit Payroll Tues or Wed. again in order to follow up on your mandatory HR/EEO & Insurance Compliance as you have been advised by the DOJ EEOC Federal Investigator . . . Letter to Deneen Wellings in July 2011." On January 11, Respondent sent an email to an EEOC investigator, Ms. Gero, Ms. Wellings, Ms. Wong, Mr. Hernandez, and her attorney. The email starts: I did NOT 'miss the deadline.' As you know, PBCSD GLITCHED and ACCESS BLOCKED for hundreds of Employees, including me, in Spring & Summer months of 2011 due to their District Technology System switching overhaul of a "NEW UPDATED VERSION of Google" which is an understandable GLITCH that WE ALL KNOW CAN BE APPROPRIATELY ADJUSTED in the School District Technology Offices. PLEASE RE-SUBMIT my Reasonable Request for Amicable Adjustment to REMOVE the capricious monthly $50 penalties and/or FILE ADDITIONAL EEOC, EEO HR GRIEVANCE Case CLAIMS, with [union attorney] who diligently assisted me in my Civil Rights to to [sic] retrieve and reinstate my PBCSD Benefits BLOCKED & DENIED ACCESS for my Medical, Vision, St. Mary's Hospital Breast Cancer Followup Appts & Dental BENEFITS REIMBURSEMENTS REINSTATEMENTS in April thru October 2011 and in December-January 2012 for their willful, wrongful Complacency, Non- Compliance & now OVERCHARGING me monthly $50 penalty. Remember, I filed and completed by LabCorp Blood Labs & SURVEYS after my SEVERAL MONTHS of my Risk Mgt UHC BENEFITS were ACCESS BLOCKED and Oct-December my Professional Development TDE Inservice Sessions Opportunities to Re-Certification are also willfully BLOCKED & Denied by Admin Wellings, Latson & Gero. PLEASE RE-SUBMIT to REMOVE Discriminatory, Retalliative [sic] Penalties & Blocks or FILE ADDITIONAL GRIEVANCE COMPLAINT in my EEO HR Case against PBCSD for Professional Career Discrimmination [sic] Damages & Losses. Later the same day, a union representative replied to Respondent's email by saying that she and Mr. Hernandez "appealed to the district on your behalf regarding the August 1, 2011 Health Survey timeline that you missed. Unfortunately, we have been unsuccessful in getting them to grant credit for completing the survey." The union representative copied Respondent's attorney, so he would be aware of their efforts. On January 12, Respondent sent an email to Ms. Howard without copies to anyone else. The email states: How consistently stressful that since I've re-submitted 2008 EEO ADA HR Concerns & Ethics Complaints that none of the infamous "PBC School Board Admin Specialists" have ever been capable of favorably following any of the lawfully sensible ethical CTA FEA Contract Dr's & DOAH Judge's Recommendations nor Conflict Resolutions for any of my respectfully re-submitted Claims to EEO ADA HR & Risk Mgt Ins Benefits Legal Dept Appeals, except by wrongfully writing false reports & filing their threatening letter containing false, defamatory allegations for me to drop my EEOC Claims or I will be suspended and/or terminated for insubordination. Thankfully, the DOJ/EEOC has been lawfully capable of re-submitting Investigations for the infamous PBCSD Administrative Specialists in order to clear up their consistent, Collaborative Complacency & Non- Compliance. I have learned to "Never give up & never give in" (Vince Lombardi) . . . As Always, Truth, Justice & Perseverance Prevails from now on 2012. On January 17, Ms. Howard emailed Ms. Gero. This email states: I wrote to [Respondent] on Nov 22 via email asking her to stop sending these harassing emails. Since then she is continuing to send me these emails. In addition, they are rambling and confusing. By letter dated February 21, 2012, Mr. Davis suspended Respondent's access to School District email for misuse of School District technology. The letter notes that he had warned her to discontinue improper use of School District email. In addition to the above-noted Latson and Wellings emails, Respondent has misused School District email in the past. Respondent had received and defied several warning memoranda from two past principals not to use School District email to harass coworkers. In the more recent of these situations, at John I. Leonard Community High School, Respondent used a code to email all school employees when she did not have permission to communicate by these means to all school employees, Respondent addressed an email to a female coworker named "Continent" as "Cuntinent," and Respondent sent the above-mentioned emails ridiculing presidential candidate. Respondent's emails involving the $500 premium discount constitute harassment and gross insubordination. Respondent's emails constitute harassment due to their large number over a relatively brief period of time, their confrontational tone, and the relatively modest benefit involved. Ms. Howard did not ignore Respondent. Upon receipt of Respondent's first email, Ms. Howard immediately contacted the appropriate person at United Health Care. The United Health Care representative researched the matter with the company's information management personnel responsible for online filings and later assured Ms. Howard that nothing indicated a problem at the company's end of the attempted transaction. Unfortunately, Ms. Howard did not communicate these efforts to Respondent, so a few more emails were justifiable from Respondent's perspective. Although Ms. Howard may not have told Respondent about the appeal process, it seems, from Ms. Wong's response to one of Respondent's emails, that Respondent was aware of this process. Approximately 100 other employees had complained about problems with online filing. By mid-December, as the new plan year was about to start, Ms. Howard was forced to cobble together an appeal process for the employees. Ms. Howard and the teachers' union entered into a memorandum of understanding under which they jointly examined, employee-by-employee, all of the online registration files and applied uniform standards to each redetermination. Respondent must be permitted some email communication with Ms. Howard prior to disposition of her appeal on December Some employees won their appeals, so it may be inferred that the online filing system was flawed. But, even prior to December 22, Respondent crossed the line between pressing her rights and harassing Ms. Howard. These pre-December 22 emails include baseless claims of discrimination and wilful neglect of duty by Ms. Howard and irresponsible claims that Ms. Howard has abused, threatened, and lied to Respondent. Absolutely nothing in the record suggests that these claims by Respondent are true, or, more importantly, that Respondent had any reason whatsoever to believe that they were true, except for the simple fact that she had been denied a $500 benefit due to a computer problem for which, in the final analysis, Respondent had no more reason to assign responsibility to United Health Care or Petitioner than she had to assign to herself. Additionally, the four emails that Respondent sent to Ms. Howard after the December 22 email announcing the unfavorable outcome of the appeal also compel a finding of harassment. Petitioner had made its final decision concerning eligibility for this $500 benefit. Nothing whatsoever can be gained from further emails to Ms. Howard. At this point, Respondent's only option was litigation of some form. Although the tone of these post-December 22 emails is relatively muted, their very existence constitutes nothing more than an attempt to hector and harangue Ms. Howard. In sending these harassing emails to Ms. Howard, Respondent committed gross insubordination. Mr. Davis had warned Respondent that further misuse of School District technology to abuse School District employees could result in Respondent's termination. Mr. Davis's directive was reasonable in nature, and Mr. Davis had proper authority over Respondent to issue the directive. By harassing Ms. Howard with the above- described emails in November, December, and January, Respondent exhibited a constant or continuing refusal to obey Mr. Davis's directive. In sending these harassing emails to Ms. Howard, Respondent committed misconduct in office. Respondent's emails unreasonably interfered with Ms. Howard's performance of her professional or work responsibilities and created a hostile, abusive, and offensive environment. Given Respondent's history of abusing School District email repeatedly--despite directives to stop--her harassing emails to Ms. Howard were so serious as to impair Respondent's effectiveness in the school system. Harboring grudges for actual or perceived slights, Respondent has displayed, repeatedly, a torch-the-earth approach to emailing in which, with copies to various third parties and vague threats to go to the media or file another EEOC complaint, she has cast herself as a force of disruption to the educational process that is the mission of the School District and its instructional, noninstructional, and administrative employees and agents. As such, Respondent's effectiveness in the school system is null. As noted in the Conclusions of Law, the definition of "gross insubordination" requires an "intentional" refusal to obey a directive. Implied in the harassment prohibited by the Principles of Professional Conduct, also noted in the Conclusions of Law, may be some notion of conscious, if not intentional, conduct. The record contains hints of some mental or emotional impairment suffered by Respondent. Testifying that she felt an urge to nurture Respondent, Ms. Gero ordered that Respondent enter the EAP, which she attended from September 28, 2011 to January 3, 2012, at which time she "successfully" completed the program. But Respondent sent three of the four post-appeal emails to Ms. Howard in the ten days after completing the EAP. Because Respondent did not testify to any impairment at the hearing, the Administrative Law Judge is left to infer that the therapy may have addressed a different issue; if addressing a relevant issue, the therapy may not have provided much relief; or, of course, after the therapy, Respondent consciously chose to continue to harass Ms. Howard. Clearly, Respondent's thinking is, at times, disordered. But she has repeatedly abused School District email in a fashion similar to the present case, and she has repeatedly been ordered to stop. Respondent's thinking does not appear to have been so disordered to have prevented her from understanding that, if she continued to harass coworkers by way of School District email, she could be fired, as Mr. Davis clearly warned. For a $500 benefit, Respondent took this risk. She is not dismissed for a rude email or two. She is dismissed because, for months, she subjected Ms. Howard to a barrage of emails that were not intended to communicate, except in their number and hostility. Along the way, several persons, including the police investigator, Ms. Gero, and Ms. Howard, gently tried to direct Respondent from the disastrous path that she was on, but she was grimly determined to pursue this matter to its obvious conclusion: win the $500 benefit or be fired trying. CBA Article II, Section M.7 provides: Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation--Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. Written Reprimand--A written reprimand may be issued to an employee when appropriate in keeping with the provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with the provisions of Article II, Section B of this Agreement. Suspension Without Pay--A suspension without pay may be issued to an employee, when appropriate, in keeping with the provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. . . . Dismissal--An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.
Recommendation It is RECOMMENDED that the School Board enter a Final Order dismissing Respondent from employment, effective as of the first day of the 15-day suspension proposed in the April 16, 2012, notice from the Superintendent. DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2012. COPIES FURNISHED: Shawntoyia Bernard, Esquire Palm Beach County School Board Office of the General Counsel Suite C323 3300 Forest Hill Boulevard West Palm Beach, Florida 33406 Jeffrey S. Sirmons, Esquire Johnson and Sirmons, LLP Suite 309 510 Vonderburg Drive Brandon, Florida 33511 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 E. Wayne Gent, Superintendent Palm Beach County School Board Office of the General Counsel Suite C316 3340 Forest Hill Boulevard West Palm Beach, Florida 33406
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
Findings Of Fact Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School. James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories. Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental. The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use. Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/ After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental, Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards. On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students. Upon arriving at the school, Mr. McCallum and Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report. Mr. McCallum requested that Ms. Gribben accompany Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing, Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk." Mr. Makowski came to the principal's office. Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches. Mr. Culbert then began to question Mr. Makowski about his inappropriate searches. Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches. Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop. Mr. McCallum urged Mr. Makowski to be honest. Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation. Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes. Mr. Makowski surrendered his laptop computer to Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours. On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report, Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children. All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches. Mr. McCallum's report concluded as follows: On Monday, September 20, 2010, after Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds, Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act. The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting. Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident. The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students. Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges. "Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay. Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/ At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report. Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum. Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination. Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality." During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment." Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing. At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned. Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board. At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention. No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer. Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact. Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned. Mr. Makowski has not been subject to discipline by the School Board prior to this case. In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement. The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011. In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2011.
The Issue Whether WKDR II, Inc. (WKDR), is jurisdictionally time-barred from bringing the challenges in Case Nos. 21-0844 and 21-0845 to contest the Department of Revenue's (Department) tax assessment and subsequent freeze of WKDR's bank account to attempt to collect on the assessment.
Findings Of Fact The Department administers Florida's sales tax statutes and performs audits to ensure compliance with sales tax laws. WKDR is a Ford franchise car dealership operating as LaBelle Ford. WKDR is organized as an "S" corporation and is wholly owned by Douglas Plattner (Mr. Plattner). WKDR's address is 851 South Main Street, LaBelle, Florida 33935 (851 South Main Street). Mark Smith (Mr. Smith) is a self-employed certified public accountant (CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for Mr. Plattner and WKDR. Mr. Smith's business mailing address is 115 Tamiami Trail North, Suite 7, Nokomis, Florida 34275 (115 Tamiami Trail). On or about March 21, 2019, the Department began a sales tax audit of WKDR for the period of March 1, 2016, through February 28, 2019 (audit period). WKDR was notified of the audit through a Notice of Intent to Audit Books and Records, dated March 21, 2019. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department. Mr. Barnard was responsible for examining the books and records of various taxpayers for compliance with Florida tax laws. Mr. Barnard retired from the Department in May 2021. He was employed by the Department for 30 years. He spent the last 15 years with the Department as a Tax Auditor IV—the most senior tax auditor position at the Department. Mr. Barnard was responsible for the tax audit of WKDR for the audit period. On or about July 30, 2019, Mr. Smith sent the Department a fully executed Power of Attorney/Declaration of Representative form (POA form) to appear as WKDR's representative in connection with the Department's audit. The POA form was completed and signed by WKDR's owner (Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith authority to speak and act on WKDR's behalf for the Department's audit. The POA form correctly states the mailing addresses of both WKDR and its CPA/representative, Mr. Smith. It also correctly states the e-mail address and fax number for Mr. Smith. Mr. Smith entered WKDR's address in section 1 of the POA form. The POA form included spaces for a contact person's name, telephone number, and fax number at WKDR, but those spaces were left blank in the form signed by Mr. Smith and Mr. Plattner. The POA form signed by both Mr. Smith and Mr. Plattner set forth the name, address, telephone number, and fax number of Mr. Smith’s CPA firm in section 2 of the POA form. Section 6 of the POA form provides as follows: Notices and Communication. Do not complete Section 6 if completing Section 4. Notices and other written communications will be sent to the first representative listed in Part I, Section 2, unless the taxpayer selects one of the options below. Receipt by either the representative or the taxpayer will be considered receipt by both. If you want notices and communications sent to both you and your representative, check this box. If you want notices or communications sent to you and not your representative, check this box. Mr. Smith completed section 6 by checking option "a," indicating that they wished to have notices and communication sent to both the taxpayer (WKDR) and the representative (Mr. Smith). Mr. Smith's e-mail address was added on the POA form by the Department's employee, Lisa Weems, after she called Mr. Smith's telephone number to obtain his e-mail address. All other information was added by Mr. Smith after consultation with Mr. Plattner, before they both signed the form. Throughout the audit, the Department's auditor, Mr. Barnard, primarily communicated with WKDR through its designated representative—Mr. Smith—at his mailing address and e-mail address. This included multiple requests for documents. At times, Mr. Barnard communicated directly with Mr. Plattner while copying Mr. Smith on the correspondence. Mr. Barnard sent a letter dated November 14, 2019, by regular mail, to WKDR at 851 South Main Street, with a copy to Mr. Smith at 115 Tamiami Trail. Mr. Smith testified that he received and read this letter. The November 14 letter provided WKDR and Mr. Smith with notice that, as things stood on that date, a NOPA was imminent. The letter stated, in pertinent part: On September 20th, we wrote you a letter requesting the information needed to complete the audit of WKDR II Inc. and the DR54 Formal Notice of Demand to Produce Certain Records. The letter stated that your failure to provide the information be [sic] September 27, 2019 may result in an assessment. That is, the implementation of alternative audit procedures to estimate a liability based on the best available information. As of the date of this letter you have not complied with our request. Therefore, enclosed is the Notice of Intent to Make Audit Changes (DR1215) and the audit work papers, which are an estimate based upon the best information available as provided in Section 212.12(5)(b), Florida Statutes. You have 30 days to review the audit adjustments, which expires on December 16, 2019. * * * If we do not hear from you by December 16, 2019, the audit file will be sent to Tallahassee so that the Notice of Proposed Assessment (NOPA) can be issued to you. The NOPA is the formal notice of the amount due. The NOPA will also provide the procedures for filing informal and formal protests. The Notice of Intent to Make Audit Changes, which was included with the November 14 letter, listed a "balance due through 11/14/2019" of $1,157,025.16. This sum included taxes of $801,967.01, a penalty of $200,491.75, and interest of $154,566.40. The notice also explicitly laid out WKDR's opportunities to informally protest this preliminary sum through a conference with the auditor or the auditor's supervisor. It provided that after the 30-day informal conference period expired, a NOPA would be issued. On December 20, 2019, Mr. Barnard sent an e-mail to Mr. Plattner with a copy to Mr. Smith. Attached to the e-mail was a letter of the same date. The letter provided as follows: On November 14, 2019, a Notice of Intent to Make Tax Audit Changes (DR-1215) was issued with additional tax due of $801,967.00. The 30 day informal protest period with the Service Center was up December 13, 2019.[2] Although your representative, Mark Smith, did provide some sales invoices after issuance of the DR-1215 they did not represent a full month of invoices as requested. Please be advised all sales invoices for December 2018 must be provided by January 3, 2020 for any changes in the assessment to be considered. These invoices should consist of same for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for December 2018. As indicated in the December 20 letter, one month before the NOPA was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30-day informal protest period expired on December 13, 2019. Mr. Smith's testimony on this matter was evasive. At first, he acknowledged that he received the December 20 letter. However, after objection from WKDR's counsel, Mr. Smith backtracked and denied receipt. His attempted denial was not credible and is not credited. The undersigned finds that Mr. Smith received the December 20 letter. Mr. Barnard sent another letter, dated January 7, 2020, by regular mail to Mr. Plattner, and by e-mail to both Mr. Plattner and Mr. Smith, which stated as follows: Please be advised the information necessary to make an adjustment to the audit results issued on November 14, 2019 has not been provided. As stated in our December 20, 2019 letter this information was sales invoices for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for the entire month of December 2018. 2 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline of December 13 for the 30-day informal conference period, while the e-mail sent on December 20 referenced a deadline of December 16. The discrepancy in the December 20 letter is immaterial as both deadlines (December 13 and 16) had passed by the date of the December 20 letter. The audit will be closed and a Notice of Proposed Assessment will be issued shortly. Once again, Mr. Smith’s testimony was evasive. After seemingly admitting he received and read the January 7 letter, Mr. Smith testified that he did not receive the January 7 letter. The undersigned found Mr. Smith's testimony on this point wholly untruthful. At the hearing, during cross-examination, the Department's counsel asked Mr. Smith about his actions and impressions after receipt of the January 7 letter in the following exchange: Q. Let's go to Exhibit 22, which is Bates Number 00081. This is another e-mail sent to you on January 7th, 2020 to Mr. Plattner showing a carbon copy to Mr. Mark Smith CPA POA. The third sentence states; "The audit will be closed and a notice of proposed assessment will be issued shortly." Does that mean that the audit is still open or the audit is closed? A. That, like I said, I mean, I've -- I've dealt with audits where they say they're going to do this and do that and it's taken them two years to send anything. Q. This letter dated January 7th, 2020 does not give a new deadline, does it? A. It does not appear to but -- yeah, it does not appear to. Q. In fact, it says the audit is closed. That means that it's done, right? A. No. I don't -- I -- not necessarily. Q. It also says that the notice of proposed assessment will be issued shortly. So you knew at this time, the NOPA was imminent, right? A. Not necessarily. Q. Is there any language in this letter indicating that WKDR has any more time to provide additional documents? A. I've worked with the State before and they've provided us additional time quite often. Q. In fact, the auditor did provide you a deal -- a great deal of additional time to have the audit, didn't he? A. Well, we provided him so many documents that we thought he needed more time too. The whole tenor of Mr. Smith's testimony was to acknowledge that he read and understood the January 7 letter to say the NOPA was imminent, but that he knew from his experience the NOPA was "not necessarily" imminent. Notably, when asked if he knew at that time that the NOPA was imminent, Mr. Smith did not say that he did not know that because he did not receive or read the January 7 letter when it was sent to him by e-mail. Mr. Smith provided answers to these and several other questions about what he did or did not do in response to the January 7 letter. It was not until after an objection by WKDR's counsel that, as before, Mr. Smith backtracked to say that he did not receive the letter. In making the finding that Mr. Smith was untruthful when he testified that he had not received the January 7 letter, the undersigned had the distinct opportunity to observe the demeanor of Mr. Smith during testimony on this issue. He was not credible and his belated denial is not credited. The undersigned finds that Mr. Smith received the January 7 letter, reviewed it, and hoped that he could buy more time as he had thought he might be able to. Testimony of Lisa Weems Ms. Weems is a Revenue Specialist III for the Department. She has worked for the Department, in its Compliance Standards Section, for over 15 years. In addition to other tasks, Ms. Weems is responsible for printing NOPAs to send out to taxpayers and their representatives. Ms. Weems testified in great detail about the process she uses to send out NOPAs. When a NOPA is issued, it is uploaded to the Department's system overnight and cannot be printed until the following morning. Because of this, Ms. Weems sends out NOPAs only four days a week—Tuesdays, Wednesdays, Thursdays, and Fridays. Ms. Weems prints and mails out approximately 400 NOPAs per week. On the day of the final hearing, she had mailed out 88 NOPAs. Ms. Weems has a system in place to keep track of the NOPAs she sends out. Ms. Weems clearly and credibly testified about the process she used to send out NOPAs and when and by what means she used to send the NOPA to WKDR and its representative in this case. Each NOPA is mailed out in a packet that includes four documents: the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a document titled How to Pay Your Audit Assessment and Notice of Taxpayer Rights. The packets are sent by USPS first-class mail. WKDR's NOPA was issued on January 13, 2020. It had to load in the Department's system overnight, so it was printed on January 14, 2020. WKDR's NOPA assessed taxes of $801,967.01, a penalty of $200,491.75, and interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following the audit.3 3 The amount of the taxes assessed and penalty remained the same as was listed in the Notice of Intent to Make Audit Changes. The amount of the interest had increased. The interest listed in the Notice of Intent to Make Audit Changes was for the period up to November 14, 2019. The NOPA specified that the deadline to request a formal hearing before DOAH was May 12, 2020, or 60 days from the date the assessment becomes a final assessment. The Notice of Taxpayer Rights provided detailed instructions on how to contest the assessment and provided further details on the timelines and deadlines to do so. Ms. Weems sent WKDR and Mr. Smith copies of the NOPA by USPS first-class mail on January 14, 2020. On January 14, 2020 (the day after the NOPA was uploaded), Ms. Weems printed an original and copy of WKDR's NOPA. She placed the original NOPA and the other three documents in a window envelope, addressed to WKDR at 851 South Main Street. A copy of the NOPA, along with the three other documents, were placed in another envelope, addressed to Mark Smith, CPA, at his business mailing address, 115 Tamiami Trail. Ms. Weems testified that she created a mail log sheet, wrapped the log sheet around the envelopes, and placed both of these NOPA envelopes in the outgoing mail basket. After placing the items in the outgoing mail basket, a Department employee from Building L picks up the outgoing mail and mails it out. Ms. Weems testified that she has mailed NOPAs this way for over 10 years. Ms. Weems testified that it was her practice, and what she was taught by the Department, to send NOPAs that had assessments for over $100,000.00 by fax and e-mail, in addition to regular mail.4 WKDR's assessment was for an amount greater than $100,000.00. On January 16, 2020, Ms. Weems sent a copy of the NOPA to Mr. Smith by fax transmission. 4 It must be noted that the Department's internal policy to send NOPAs with assessments over $100,000.00 by e-mail and fax is an unadopted rule; however, it is not necessary to rely on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat. Ms. Weems sent the fax to Mr. Smith's fax number, which was provided on the POA form. Ms. Weems used a fax coversheet when sending the fax. The coversheet recorded several important pieces of information. It provided the case number and the taxpayer's name (WKDR). Two boxes on the fax coversheet were checked—a box indicating there was a "POA" (Power of Attorney) in the file and a box indicating the NOPA was to be sent to the "POA." Ms. Weems also made some notes on the fax coversheet. She wrote: "original notice mailed 1/14/20," "email: mark@swagcpa.com," and "(8) pages." Ms. Weems testified that the reference to eight pages represented the amount of pages she faxed. These pages included the four documents sent by USPS first-class mail mentioned above. After faxing the documents to Mr. Smith's fax number, Ms. Weems received a fax transmission report. The report indicated "Results OK." The term "OK" on a fax transmission report is generally accepted as meaning that the transmission was completed successfully. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and Notice of Taxpayer Rights to Mr. Smith by e-mail. Ms. Weems sent the e-mail to Mr. Smith at mark@swagcpa.com—the e-mail address she obtained from Mr. Smith's office, and which he confirmed was his through testimony at the hearing. The e-mail's subject line stated "Audit Number 200262550-010 WKDR II, INC." The e-mail stated as follows: Please respond back to me by e-mail letting me know you did receive the Notice of Proposed Assessment (Nopa) and Taxpayer Rights by Email and Fax please. Good afternoon, Mr. Smith. I'm e-mailing you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights. I also faxed you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights to fax number 941-866-7691. The Original Notice of Proposed Assessment (Nopa) & Taxpayer Rights was mailed out on 1/14/2020. Any questions call the Nopa Line at 850-617-8565. Thanks, Lisa Weems. The e-mail included an attachment labeled "3125_001.pdf." Ms. Weems testified that the attachment was a copy of the NOPA and Taxpayer Rights. Ms. Weems requested a "delivery receipt" and "read receipt" through her e-mail platform for the e-mail she sent to Mr. Smith. This was her customary practice when sending e-mails. A few seconds after sending her e-mail, she received a "delivery receipt" confirmation that the e-mail was delivered to mark@swagcpa.com. Shortly thereafter, Ms. Weems received a "read receipt" confirmation that her e-mail was received by Mr. Smith and was "read." The use of delivery and read receipts are not novel practices. Delivery and read receipts are used by a sender of an e-mail to confirm that the e-mail sent has been delivered to the addressee and, subsequently "read," that is, opened by the recipient. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax and e-mail. Ms. Weems's monthly log for January 2020 includes entries that confirm she sent the WKDR NOPA by e-mail and fax to Mr. Smith at the contact information he provided. In addition to her personal monthly log, Ms. Weems also used SAP—a Department computer system that employees work in every day—to document her activities. On January 16, 2020, Ms. Weems made a notation in SAP that stated as follows: "I faxed the Notice of Proposed Assessment (NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941-866- 7691. I e-mailed the Notice of Proposed Assessment (NOPA) and taxpayer rights to Mark Smith on 1/16/20 to e-mail address (mark@swagcpa.com). See attachments and notes." Testimony of Mark Smith Mr. Smith testified that he did not receive the NOPA by USPS first- class mail, fax, or e-mail. If the undersigned took Mr. Smith's testimony as true, all three of the Department's avenues of sending the NOPA failed. Mr. Smith testified that the NOPA, sent by USPS first-class mail, in the same fashion used for several other letters that he had received from the Department, was not received. Other than Mr. Smith's denial, WKDR provided no evidence that the NOPA and accompanying documents Ms. Weems mailed in separate packages to WKDR at its address and to WKDR's representative's address were not received. Mr. Smith testified that during the time the NOPA was sent, his business utilized an electronic faxing service called MyFax.com. Through this service, he received faxes in e-mail format, with the contents of the fax attached to the e-mail as a PDF document. Mr. Smith testified that he did not receive the fax from Ms. Weems. Mr. Smith also testified that he rarely read faxes because "90 plus percent of our faxes are payroll-related" and belonged to his business partner. Mr. Smith did not credibly explain how he comes to know about the ten percent of faxes directed to him. While perhaps his business partner screens faxes, it is inconceivable that a business firm would not ensure that incoming faxes are directed to the person to whom they are sent. That is particularly true where, as here, Mr. Smith has provided his business fax number as a means to give him notices regarding WKDR's audit. Although the Department provided documentation of a delivery and read receipt of the NOPA sent by e-mail to Mr. Smith, Mr. Smith testified that he did not receive it. Mr. Smith offered no credible explanation for the delivery and read receipts. Once again, it is not credible that a CPA who serves as the POA for taxpayer WKDR would not be reviewing e-mails delivered to his e-mail address, when his office has provided that e-mail address to the Department. Notably, he acknowledged reviewing other e-mail communications from the Department with regard to WKDR's audit. Mr. Smith's feigned ignorance of an e-mail delivered to him and opened by him is not credible and is not credited. The competent substantial evidence establishes that the Department mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on the POA form. The testimony that Mr. Smith did not receive the NOPA is not credible. WKDR did not deny that it received the NOPA mailed to it; WKDR offered no testimony on the subject.5 The NOPA was mailed to the same addresses provided by Mr. Smith and Mr. Plattner on the POA form and used by the Department to successfully communicate with Mr. Smith during the audit. WKDR and Mr. Smith were on notice that a NOPA was forthcoming. The Department advised WKDR and Mr. Smith by letter through regular mail and e-mail, on at least two occasions, that a NOPA was going to be issued and that the Department anticipated an assessment of additional taxes of approximately $801,967.00. The Department provided notice of the NOPA in a manner reasonably calculated to inform WKDR and its representative of WKDR's rights and of the deadlines to take action to protect those rights. WKDR and the Department communicated frequently during the audit, but after issuance of the NOPA, communications with WKDR and Mr. Smith ceased for several months. Mr. Smith did not reach out to the Department to find out why communications ceased. The reasonable inference is that Mr. Smith was fully aware of why the previous communications during the audit stopped: because the audit had culminated 5 In its post-hearing submittal, WKDR argued that the NOPA mail should have been sent to Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing address given on the NOPA. WKDR had the opportunity in the POA form to designate Mr. Plattner as the taxpayer contact person but chose not to do so. in the NOPA and it was up to WKDR to contest the NOPA in a timely hearing request. On or around February 18, 2021, the Department issued an NIL against WKDR, by which it notified WKDR that it intended to freeze funds from WKDR's bank account in the amount of $999,999.99. The NIL provided that WKDR had 21 days from the date of receipt of the NIL to dispute the matter. On February 19, 2021, WKDR submitted a petition for a chapter 120 administrative hearing to challenge the NOPA. WKDR's petition challenging the Department's NOPA was filed with the Department 403 days after the date on the NOPA (January 13, 2020) and 286 days after the deadline for filing a petition to request an administrative hearing had passed. On February 23, 2021, WKDR timely filed a petition for an administrative hearing to dispute the NIL. WKDR's dispute of the NIL is solely based on its challenge to the NOPA, and its claim that it did not receive the NOPA when issued the year before. WKDR failed to timely exercise its opportunity to protest the amount of the Department's assessment, the underlying audit findings, and the methods the Department used to reach the amount in the assessment. There is no claim by WKDR in this case that the content of the Notice of Taxpayer Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested; its claim is solely that it did not receive the NOPA and the accompanying Notice of Taxpayer Rights, a claim which is not credible. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department sent the NOPA to WKDR's representative by USPS first-class mail, e-mail, and fax, and to WKDR directly by USPS first-class mail; and that Mr. Smith received the NOPA by USPS first-class mail, e-mail, and fax, and that WKDR received the NOPA by USPS first-class mail. WKDR did not submit a timely request for hearing to dispute the NOPA.
Conclusions For Petitioner: Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 For Respondent: J. Clifton Cox, Esquire John G. Savoca, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order dismissing DOAH Case Nos. 21-0844 and 21-0845. DONE AND ENTERED this 30th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2021. Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Kristian Oldham, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jacek Stramski, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Doug Plattner 3118 Walter Travis Drive Sarasota, Florida 34240 James H. Sutton, Esquire Moffa, Sutton & Donnini, PA 8875 Hidden River Pkwy, Suite 230 Tampa, Florida 33637-2087 J. Clifton Cox, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Allison M. Dudley, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John G. Savoca, Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether Respondent, Beatrice Yazbeck, a guidance counselor under contract with Petitioner, Orange County School Board, violated an express work rule of Petitioner's Management Directive A-9; and whether Respondent violated Florida Administrative Code Rule 6B-1.006(5)(d) and (e), by committing misconduct in office; and, if so, whether any such offense provides just cause for discipline up to, and including, dismissal of Respondent pursuant to Subsection 1012.33(1)(a), Florida Statutes (2004).
Findings Of Fact Based on the evidence received at the final hearing, the following Findings of Fact are made: Petitioner is the governing board of the Orange County School District, and Ronald Blocker is the Superintendent of Orange County Public Schools and the executive officer of Petitioner. Respondent is employed by Petitioner as a high school guidance counselor at the campuses of WPHS and the Winter Park Ninth Grade Center (Ninth Grade Center). She has held a Professional Services Contract with Petitioner for several years. Respondent's employment is subject to a Collective Bargaining Agreement referred to as the "Contract Between the School Board of Orange County, Florida, and the Orange County Classroom Teachers' Association, 2004-2005." Article XII of the Collective Bargaining Agreement pertains to employee discipline and provides: An employee may be disciplined only for just cause and discipline shall be imposed only for a violation of an expressed rule, an expressed order, an expressed policy or reasonable expectation of management, which reasonably should have been known to the employee. This shall not be construed as to prohibit the administrator from questioning an employee and/or offering reasonable direction at the time of the occurrence of any incident, the result of which might later be dealt with in a disciplinary manner. Any teacher may be suspended or dismissed at any time during the year, provided that the charges against him/her are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude where applicable, and in accordance with Florida Statutes. Respondent, as a member of the instructional staff of Petitioner, is required to abide by the "Code of Ethics of the Education Profession in Florida (Code of Ethics)." Fla. Admin. Code R. 6B-1.006(5). The State Board of Education established "Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct)" that specifically require that educators: shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected form such harassment or discrimination. shall not make malicious or intentionally false statements about a colleague. Fla. Admin. Code R. 6B-1.006(5). At the start of the 2004/2005 school year, Respondent was provided a copy of the WPHS's Faculty Handbook, which contained Petitioner's Management Directive A-9. Management Directive A-9 is a work rule prohibiting employees from misusing school computers and internet access for personal, non-educational activities. Management Directive A-9 provides, in pertinent part: Employee Access to Network e. The District authorizes employees to use District computer technology resources and data bases for assigned responsibilities. These resources shall be used by employees to enhance job productivity as it relates to District business. These resources shall be used for District-related purposes and not for personal use or gain or for the benefit of private, "for profit" or "not for profit" organizations. Network Security and Acceptable Use b. Internet resources and e-mail shall be us ed by employees to enhance job productivity as they relate to District business and shall not be used to send abusive, threatening or harassing messages. Employees shall refrain from communications where the meaning of the message, or its transmission or distribution, would be illegal, unethical or irresponsible . . . . * * * 6. Due Process a. Any employee failing to comply with this Management Directive may be subject to disciplinary action as well as civil liability or criminal charges. At the beginning of the 2003/2004 school year, Respondent was involuntarily transferred from Evans High School (EHS) to WPHS. EHS is also racially diverse, however, both the student and faculty population is predominately African- American. WPHS has a student population of approximately 3,800 students and 308 staff members. The student population at WPHS is racially diverse with between 18 percent and 19 percent of the students being African-American. The faculty at WPHS is equally diverse. Within the past two years, WPHS has had an increase in racial diversity among its students due, in significant part, to the advent of opportunity scholarships which enable students of underperforming schools to transfer to other schools within the District. Mary Brinson is an African-American mathematics teacher at WPHS, who has been employed with Petitioner for 30 years. At all times material, Kimrey Ross-Myers was employed as assistant principal for instruction for WPHS and was the assessing administrator of Respondent. William Gordon was employed as principal at WPHS. Donald Shearer is a senior manager in the Employee Relations Department of Petitioner. On January 7, 2005, Respondent, while on duty in the guidance counselor's office at the Ninth Grade Center, composed a personal e-mail to her brother using the school's computer. Among other things, this e-mail contained the following passage: Finally, this at the end of too many horrible experiences of struggle, stress and strife imposed by inept, incompetent, ignorant persons of color and this dike on our main campus whom I have finally discovered may be the culprit responsible for the problems I've had with this female administrator, Kimrey. Funny, isn't it, after all the shit I've put up with at the hand of black folks, I still can't get myself to use the n word. Wonder why???? I'll try to talk to you soon. On January 7, 2005, Respondent accidentally touched the print button, rather than the send button on her computer, which printed the e-mail at a printer networked to the WPHS campus. Recognizing this error, Respondent departed the Ninth Grade Center and drove to WPHS to retrieve the printed e-mail. Unbeknownst to both Mary Brinson and Respondent, the e-mail printed among Ms. Brinson's school grade reports which Ms. Brinson had collected for processing. While reviewing her student grade reports, Ms. Brinson came upon Respondent's e-mail of January 7, 2005, and was alarmed by its demeaning, discriminatory content. Troubled by the fact that the e-mail was authored by a school guidance counselor with whom she had professional contact, Ms. Brinson took it home, and on Monday, gave the e-mail to Kimrey Ross-Myers for handling within her discretion. Ms. Brinson advised Ms. Ross-Myers of the e-mail because she regarded its content as evidencing discriminatory conduct directed at African-Americans and lesbians. Further, she advised Ms. Ross-Myers of the e-mail because she was required to abide by the Code of Ethics requiring that she protect against harassment and discrimination. Ms. Ross-Myers took it to Principal Gordon, who, in turn, referred the e-mail to Mr. Shearer of Petitioner's Employee Relations Department. Upon learning of the January 7, 2005, e-mail, Mr. Shearer instructed the District staff to review Respondent's computer for other similarly offensive e-mails. Two such e-mails were retrieved: one composed by Respondent on May 25, 2004, at 6:47 p.m., and the other on October 7, 2004, at 9:43 a.m., which was transmitted during school hours. In the e-mail composed by Respondent on May 25, 2004, she criticized Ms. Ross-Myers, writing: My work and my nemesis, this evil administrator from hell didn't want me to stay here, has me running around in circles. Respondent, again, criticized her immediate supervisor, Ms. Ross-Myers, in her e-mail of October 7, 2004, writing: Kimrey is the Assistant Principal who was on my case from day one. I was transferred to this school on short notice (one week before the beginning of school) after a perfect evaluation and realignment to the school that transferred me. Referring to her former principal at EHS, Elaine Scott, Respondent also wrote in her e-mail of October 7, 2004: The principal, an ignorant black female, gave all the Counselors a serious ultimatum about our performance, although all of us had gotten impeccable evaluations. The e-mails of May 25, 2004, and October 7, 2004, were transmitted via Petitioner's internet account to Respondent's brother. Principal Gordon testified that after considering all three e-mails composed by Respondent, he became concerned that Respondent may be prejudiced against African-Americans. The ostensibly discriminatory content of the e-mails, combined with all reasonable inferences that could fairly be drawn from them, caused Principal Gordon to believe that Respondent's effectiveness to serve as a high school guidance counselor had been seriously compromised. Petitioner has adopted a Code of Civility that applies to students and staff alike. During the 2004/2005 school year, the Code of Civility was published within the Student Code of Conduct. The Code of Civility specifically prohibits individuals from ethnic stereotyping and uttering slurs. The Code of Student Conduct also prohibits demeaning, abusive, or obscene content in any communication. The e-mails composed by Respondent on January 7, 2005, and October 7, 2004, violate standards of conduct expressly incorporated into the Code of Civility. Ms. Brinson, Ms. Ross-Myers, Principal Gordon, and Superintendent Blocker testified that these e-mails, individually and collectively, caused them to question whether Respondent would interact with students in a fair and equitable fashion while serving in her role as a high school guidance counselor. These concerns were elevated to the extent that Principal Gordon, Ms. Ross-Myers, and Ms. Brinson testified that they would refrain from referring students to Respondent for counseling on matters of racial or sexual orientation sensitivity. The "black" administrator Respondent referred to in her e-mail of October 7, 2004, as "ignorant" is EHS principal, Elaine Scott. At the final hearing, Respondent admitted she inaccurately characterized Principal Scott as being "ignorant." When criticizing her previous administrators at EHS, Respondent associated their race with her finding that they were ignorant, inept, or incompetent. When offering criticism of Caucasian administrators, namely Ms. Ross-Myers, Respondent omitted any racial reference. Respondent testified with respect to her e-mail of January 7, 2005, that the statements therein were true and that she "had many horrible experiences, struggles, stress and strife imposed by inept, incompetent, ignorant persons of color," while serving as a guidance counselor at EHS. Respondent further testified that she did not intend to stereotype African-Americans in a derogatory manner and that she was referring to four specific African-American administrators with whom she worked: James Lawson, Elaine Scott, Chuck Rivers, and Joe Salsby. Respondent gave credible testimony relating to her referring to the "n" word, but not using it. This explanation is that she considers the use of the "n" word to be racist and a horrible thing to say to a person of color and that is why she could not use it. Both Ms. Ross-Myers and Principal Gordon testified that they have had professional contact with these four administrators and confirmed that they are regarded by their peers as being capable, competent, and professional. However, no additional investigation was conducted. The term "dike [sic]," as used in the context of the e-mail, is a disparaging term for a lesbian. Respondent refused to identify the female staff member who was the target of her slur and testified, "I would never put that label on anyone." Despite this denunciation, Respondent did so use this term to disparage a co-worker and, further, did so without any knowledge of her co-worker's true sexual orientation. Respondent testified that she does not use the term "dyke" in public to put labels on people. The term was suggested to her in a telephone conversation by her homosexual brother after she described the conduct of a specific person toward her. In the e-mail to her brother, Respondent used the word as an identifying term to refer to the person by the appellation which her brother had already used for that person. Respondent is so unfamiliar with the word that she misspelled it as "dike" in her e-mail. Respondent assailed Ms. Brinson's motives in coming forward and reporting her accidental discovery of the January 7, 2004, e-mail. Respondent accused Ms. Brinson of "snooping" and of being an "intermeddler," who purposely schemed to get Respondent "fired." At the final hearing, Respondent further accused Ms. Brinson of having committed professional misconduct in reporting the e-mail to her supervisor. Respondent admitted violating Management Directive A-9 when she used the District's computer and internet account to write and transmit a personal e-mail to her brother. Two of the subject e-mails were composed during school hours. Prior to the filing of administrative charges against Respondent, Petitioner had discharged other employees for violating Management Directive A-9, by misusing the District's computer network to compose and send e-mails for personal gain or for transmitting e-mails with obscene and abusive content. Superintendent Blocker further testified that he believed that Respondent's misconduct violated Petitioner's anti-discrimination policy that requires all OCPS employees to act with impartiality and fairness in dealing with co-workers, students, and the public at large. In Petitioner's Administrative Complaint of March 8, 2005, Petitioner alleges that: 1) Respondent violated Management Directive A-9 in misuse of the District's computer network to compose and transmit e-mail that demeaned African- Americans and which contained a slur against lesbians; 2) Respondent violated Subsection 1012.795(1), Florida Statutes (2004), by committing misconduct in office, which seriously reduced her effectiveness as an employee; 3) Respondent violated the Code of Ethics and the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006(5)(d) and (e); and 4) Respondent engaged in misconduct in office, willful neglect of duty, gross insubordination, and conduct unbecoming of an employee in breach of Respondent's employment agreement with Petitioner. There is no evidence that Respondent committed any act of sexual discrimination against any person or group of persons. There is no evidence that Respondent failed to deliver appropriate counseling services to any student or group of students. There is no evidence that Respondent ever failed to deliver appropriate services to any student, allowed harm to any student, or committed harm to any student for any reason, including the racial or sexual orientation diversity of any student. There is no evidence of harm to any student of diversity by Respondent during her entire career in education. There was no investigation as to whether Respondent was, in fact, racially prejudiced or whether she was, in fact, prejudiced against persons of alternative sexual orientation. Rather, Petitioner ascribed racial and sexual prejudice to her based entirely on the content of the thoughts expressed in her e-mail, which was intended to be a private communication and was not intended for exposure by any person who might be offended by it. All of Petitioner's witnesses admitted that their concern about Respondent's effectiveness as a counselor is anticipatory. The preponderance of the evidence proves that Respondent violated Management Directive A-9 by misusing the District's computer network to compose and transmit e-mails that demeaned African-Americans and which contained a slur against lesbians. Respondent violated Subsection 1012.795(1), Florida Statutes (2004), by committing misconduct in office, which seriously reduced her effectiveness as an employee. Respondent violated the Code of Ethics and Principles of Professional Conduct. Fla. Admin. Code R. 6B-1.006(5)(d) and (e) Respondent engaged in conduct unbecoming of an employee in breach of Respondent's employment agreement with Petitioner.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Orange County School Board, enter a final order as follows: 1) Find Respondent, Beatrice Yazbeck, guilty of violating Management Directive A-9, Florida Administrative Code Rule 6B-1.006(5)(d) and (e); and terminating the Professional Services Contract of Respondent. It is further RECOMMENDED that Respondent be returned to annual contract status and that she be suspended, without pay, for a period of two months. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2005.
The Issue The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
Findings Of Fact Parties. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon"). Allegations and Investigation. In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony. On October 23, 2006, J. B. sent Brenlla another e-mail. In this message, J. B. demanded that Brenlla call him "ASAP" on a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J. B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J. B. not to call or contact her again. J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family." On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged. The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other. Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that J. B. leave the school premises (on which he was trespassing), and she called the school police. Arrest and Prosecution. On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor. The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B. The Operative Historical Events. Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the only two witnesses who really know for sure what happened is the more believable. Having listened carefully to and closely observed J. B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things. J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity. Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next. J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J. B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters. More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are: (a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected. Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard. The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage". The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows. The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation. The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.) Nearly 80 percent of the documented conversations, or 156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of 53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills. The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage. Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact by most reasonable measures, especially in view of the fact that J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school. Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations (102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day. Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.) The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair. The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students. As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores. The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex." Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative. Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time. J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle. J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions. J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited J. B. at his apartment once or twice and had sexual intercourse with him there. The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002. Gradually, though, the relationship began to fizzle out. With J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation. Determinations of Ultimate Fact The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2012),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 730576, covering the areas of emotionally handicapped and mathematics, which is valid through June 30, 2016. During all times relevant hereto, Respondent was employed as a mathematics teacher at Winter Springs High School (WSHS) in the Seminole County School District (SCSD). Dr. Michael Blasewitz is currently the executive director of secondary education for Seminole County Public Schools and was principal at WSHS from 2004 through the 2011- 2012 school year. In 2006, Dr. Blasewitz hired Respondent as a teacher at WSHS. On or about January 25, 2010, Dr. Blasewitz issued a letter of reprimand to Respondent for making inappropriate, sexually suggestive comments to female students. The reprimand contains the following directives: You are to conduct yourself in a professional manner at all times; You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students; You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and You are to maintain an appropriate student/teacher relationship at all times when interacting with students. On or about March 5, 2012, Dr. Blasewitz issued a second letter of reprimand to Respondent for making an inappropriate, sexually suggestive comment to a student, and displaying a rubber penis on his desk, which Respondent had confiscated from a student. The reprimand contained the following directives: You are to conduct yourself in a professional manner at all times; You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students; You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and You are to maintain an appropriate student/teacher relationship at all times when interacting with students. Respondent was informed in both letters of reprimand that further misconduct could result in more discipline, including termination of his employment. Dr. Donna Reynolds has been the principal at WSHS since 2012. On or about October 11, 2012, a 16-year-old female student, A.T., reported that while in Respondent’s classroom, she was seated on Respondent's desk chair. A.T. alleged that Respondent asked her to remove herself from his chair and when she refused to do so, Respondent sat in the chair (with the student still seated) by physically wedging himself between the back of the chair and A.T.'s back. Respondent, by placing himself in such a position, allegedly caused the front of his torso to press against A.T.'s back. A.T. allegedly did not like being touched by Respondent and, as an expression of her displeasure, poked Respondent in his eye with a marker. An investigation was launched as to Respondent’s alleged misconduct involving A.T., and it was pursuant to this investigation that other alleged misconduct by Respondent was discovered.2/ On or about October 26, 2012, the SCSD reassigned Respondent to the maintenance department pending the outcome of the investigation stemming from the allegations made by A.T. On or about March 15, 2013, the SCSD notified Respondent that at the next regularly scheduled board meeting, the SCSD would be recommending that Respondent's employment be suspended without pay and subsequently terminated. On or about April 12, 2013, Respondent entered into a settlement agreement with the SCSD, wherein Respondent resigned from employment, effective immediately, and agreed not to seek reemployment with the SCSD in any capacity, “at this time or at any future time.” Respondent, in both the settlement agreement and his letter of resignation, did not admit to or otherwise acknowledge any wrongdoing as it relates to any matter pertaining to his employment with SCSD. Background Former WSHS student K.C., at the time of the disputed fact hearing, was 20 years old. K.C. entered the ninth grade at WSHS during the 2009-10 school year and graduated from WSHS at the end of the 2012-13 school year. During the 2011-12 school year, when K.C. was a junior at WSHS, one of her assigned classes was to work as Respondent’s aide. According to K.C, this resulted in her spending between one to two hours each school day in Respondent’s classroom. M.A. is currently a senior at WSHS. During the 2012-13 school year, M.A. was enrolled as a student in one of the algebra classes taught by Respondent. M.A.’s first language is Spanish and she only started speaking English a few years ago. M.H. graduated from WSHS in 2015. M.H. was never enrolled as a student in any of the classes taught by Respondent but met Respondent during the 2011-12 school year when a student that M.H. befriended on the bus informed M.H. that she was involved sexually with Respondent. M.H., even though she did not know Respondent at the time, approached Respondent and inquired about the nature of his relationship with the student in question. Upon questioning by M.H., Respondent denied that he was involved in a sexual relationship with the student in question. As a consequence of this encounter, Respondent and M.H. developed a friendship. Girls Sitting on Respondent’s Lap Throughout the course of the 2011-12 school year, K.C., while performing her duties in Respondent’s classroom as a teacher’s aide, often observed female students conversing with Respondent while sitting on Respondent’s lap. K.C.’s specific recollection is that throughout the school year there were numerous times when she observed many different girls sitting on Respondent’s lap. According to K.C, the girls would often sit on Respondent’s lap in positions where they would straddle Respondent while facing him, sit such that their butts would be on Respondent’s lap with their backs facing Respondent, or sit across Respondent’s knees. M.A. also witnessed Respondent engage in conduct similar to that described by K.C. During the 2012-13 school year, M.A. was enrolled as a student in one of the algebra classes taught by Respondent. The algebra class met during the first and second periods of the school day. M.A. credibly testified as follows: Q: Okay. Did you ever see any girls sit on Mr. Mulock’s lap? A: Yes. During class. Because I had him for a long time, first and second period. So girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap. Q: I mean how? Sideways? Backwards? A: Facing out. Q: Facing out? A: Uh-huh. Q: Backed up to him with their butt in his lap? A: Yeah. Q: What were they doing while they’re sitting [o]n Mr. Mulock’s lap? A: Talking, laughing, joking around. Tr., pp. 191, 192 M.H. credibly testified to an incident where, against her will, she ended up sitting on Respondent’s lap. According to M.H., one day while in Respondent’s classroom, she was walking past Respondent while he was sitting on a chair, when Respondent, for no reason, grabbed her forearm and tugged her towards him thereby causing her to fall in a seated position on Respondent’s lap. Inappropriate Text Messages K.C. credibly testified that on one occasion she received a sexually suggestive text message from Respondent. K.C. explained that once while working as Respondent’s student aide, she was in Respondent’s classroom when the school’s front office called looking for Respondent. At the time of the call, Respondent was absent from the classroom. K.C., in an attempt to provide cover for Respondent, informed the front office that Respondent was in the hallway talking to another teacher, even though in reality she did not of Respondent’s whereabouts. After speaking with the front office, K.C. texted Respondent and asked “if he was coming to class.” Respondent replied to K.C. saying, “I’m not coming. I have not seen you yet.” K.C. was bothered by Respondent’s sexually suggestive reply. M.H. testified that she also received a sexually inappropriate text message from Respondent. M.H. credibly testified that a few months after befriending Respondent, he randomly sent her a text message generally asking, “hey, what’s up?” M.H. responded by saying, “hey, not much. Just hanging around.” Respondent then texted that “he was sexually frustrated and in need of release.” M.H. was uncertain of Respondent’s motives, and because she felt uncomfortable with Respondent’s text, she elected not to respond to his sexually charged statement. Sexually Suggestive/Inappropriate Comments and Gestures K.C. testified that one of her fellow students died while K.C. was a student at WSHS. Following a memorial service for the departed student, K.C., Respondent, and a number of other female students went to a business establishment near the school for refreshments. While at the establishment, Respondent asked the girls if they were still virgins. According to K.C. “everyone [was] just like shocked and like hurried up and changed the topic.” In a separate incident, Respondent also asked K.C. if she and her then boyfriend were engaged in sexual activity. K.C. advised that Respondent’s inquiry about whether she and her former boyfriend were having sex “was kind of awkward [and] I just felt like he shouldn’t be asking that[,] it was like personal.” Eventually K.C. ceased all contact with Respondent because being in his presence made her feel very uncomfortable. Respondent also made inappropriate comments to M.A. On one occasion, Respondent told M.A., “you are very beautiful. Just wait a little bit longer till you’re 18, because I’m going to be at your door knocking.” M.A. said that she felt embarrassed by Respondent’s statement. M.A. also testified that while in class with Respondent, she observed Respondent jokingly arguing with a female student (C.C.) about a marker. M.A. credibly testified that during this incident, she saw Respondent grab C.C. around her waist and touch C.C. on her butt with his hand. Former WSHS student M.H. credibly testified that Respondent discussed his sex life with her, including sexual fantasies that he had about a female co-worker and his sex life with his wife. Respondent told M.H. that “he was a little frustrated with his wife because she want[ed] to conceive more children at the time, and he liked being more spontaneous about it, and she was scheduling sex on a calendar.” M.H. also credibly testified that Respondent made inappropriate comments about her breasts, stating that Respondent once said that she “looked perky today.” There was also an instance where Respondent pinched M.H. on the butt. M.H. also credibly testified that while Respondent was planning for a scalloping trip with her and several other students, she heard Respondent exclaim that “he couldn’t wait to see [K] (another student at WSHS) in her bikini.” On another occasion M.H. was present when Respondent, while standing next to another female student, squeezed the female student’s lips and said, “doesn’t she have perfect lips for a blow job.” On yet another occasion, M.H. heard Respondent proclaim that a student named C.W. “had big tits” and that another student, S.G., “had a great body.” Finally, M.H. heard Respondent offer the following proposition to student S.G.: Q: And tell us what exactly did you hear Mr. Mulock say. A: He had made a proposition to her that if she could get him off orally, blow job, then he would treat her to a weekend of whatever she wanted to do. Anything. And if she failed to get him off orally, then it was vice-versa, that she got – or he got to do whatever he wanted with her for an entire weekend. Tr., p. 183. M.A. also witnessed Respondent making sexually suggestive gestures and inappropriate comments. M.A. credibly testified as follows: Q: Okay. Did you ever observe Mr. – hear Mr. Mulock make any inappropriate comments and make inappropriate gestures? A: Yes. Q: Tell us about that. A: He would – when he was teaching, he would always talk and then always try and make it out of sex. He would make gestures with his tongue. He would poke his cheek (indicating) with his tongue and just make gestures like that (indicating). And trying to be funny or being nasty. Q: This is kind of embarrassing for you? A: A little bit, yeah. He would do like stuff like that (indicating), like open his mouth and – Q: And move his hand back and forth? A: Yeah. Q: And poke his tongue inside his cheek? A: Yeah (indicating). And he would then swallow stuff and like that. Q: Okay. When he would do those things, in your mind what is he doing? A: I didn’t understand why he would do th[at] stuff in front of the whole class. And the funny thing is that it was only – he was always around girls. So the girls would find that a little bit funny at that time, some girls. And then some guys would just shake their heads. It was very clear what he was trying to do, you know. Q: When you say it was very clear –- A: Yeah. Q: -- what’s clear in your mind? What is he doing? A: Because he’s being nasty, perverted. It’s not right. Tr., pp. 189 through 191. Respondent Assisted M.H. with Skipping Class M.H., by her own admission, was not a star student during her freshman year and she credibly testified that Respondent materially contributed to her less than stellar performance as a student. M.H. testified as follows: Q: Alright. Now at that point did you all, you and Mr. Mulock, then develop a friendship? A: Yes. Q: Did you spend a lot of time with him in class during the class day? A: Yes. Q: Tell us about when you would go to his classes – go to his room. How many times a week would you say you went to his room? A: Probably on a daily basis. Q: Daily basis. How long did you stay there? A. Sometimes the whole day, sometimes just one or two classes, depending on which class I was trying to skip that day. Q: Okay. Now if you’re spending time in his class, and he’s not one of your teachers, weren’t you supposed to be somewhere else? A: Of course. Q: Okay. And did he know that you were supposed to be somewhere else in class? A: Yes. Q: Okay. Did he ever make excuses for you with teachers, to get you back in the class? A: To get me back in – into his classroom, or Q: Into another class. A: Yes. Q: Okay. How would he do that? A: Either by email, or a phone call, or writing a pass. Q: To the teacher whose class you were supposed to be in? A: Yes. Q: Okay. So you just went there often and just kind of hung out? A: Yes. Q: And he was okay with that? A: Yes Tr., pp. 156 through 158. Afterschool Activities Petitioner alleges that Respondent, without the approval of students’ parents and the administration of WSHS, took students fishing on his boat and had students doing yardwork at his personal residence. Neither the boat trip nor the yardwork activity occurred during the school day. Respondent admits that administrative personnel for WSHS were unaware of these afterschool activities. However, as to the fishing trip and yardwork performed at Respondent’s home, the undisputed evidence establishes that the father of one of the students escorted his daughter on the fishing trip and the mother of one of the students that performed yardwork at Respondent’s home transported her daughter to Respondent’s home on the day in question. The evidence offered by Petitioner as to these allegations is insufficient to establish that Respondent engaged in clandestine activities that breeched established standards related to parental consent. Students Hanging Out in Respondent’s Classroom Paragraph 6(e) of the Administrative Complaint alleges that Respondent, after being warned by his immediate supervisor, continued to allow students to hang out and socialize in his classroom during his lunch breaks and planning periods. Dennis McComb arrived at WSHS in October 2011. Mr. McComb was Respondent’s immediate supervisor. Within a month of his arrival, Mr. McComb observed that students, contrary to policy, were in Respondent’s classroom during Respondent’s planning period. Mr. McComb informed Respondent that he needed to cease allowing students in his classroom during the planning period. As previously indicated, K.C. worked as Respondent’s student aide during the 2011-12 academic term. K.C. testified that she witnessed multiple girls hanging out in Respondent’s classroom “when we were switching classes . . . [o]r sometimes they would already be in there when I went to his class for the class I was supposed to be there for.” M.A. testified that “girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap.” M.H. testified that Respondent “would have classes going on, and then other students throughout the day would come in and visit him, or other students would skip in his class as well.” The testimony of these students is not specific as to when they made their observations in relation to Mr. McComb’s directive to Respondent regarding students being in Respondent’s classroom at improper times. Respondent’s Effectiveness as Educator Undermined Dr. Blasewitz, Dr. Reynolds, and Mr. McComb testified that based on Respondent’s conduct while employed at WSHS, they would not want Respondent employed as a teacher and believe the alleged misconduct engaged in by Respondent, if true, would undermine his effectiveness as an educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through six of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 730576 for a period of five years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2015.
