The Issue The issue in this case is whether respondent should be dismissed from her position as a teacher for the reasons given in the amended notice of proposed dismissal dated January 20, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Gwendolyn M. Beeks, was a classroom teacher employed by petitioner, Duval County School Board (Board). When the events herein occurred, respondent was employed at Pine Estates Elementary School in Jacksonville, Florida. Between July 9, 1994, and August 22, 1994, respondent had access to the bank account of the Pine Estates Elementary School Safety Patrol. Based on a complaint by parents of patrol members, an investigation of the bank account was conducted by the state attorney. On November 14, 1994, the state attorney filed an information against respondent charging her with violating Section 812.014(c), Florida Statutes, a third degree felony. Specifically, respondent was charged with the theft of approximately $1,600.00 from the Safety Patrol bank account. On December 15, 1994, respondent entered a plea of guilty to the charge. The circuit court withheld adjudication, placed her on eighteen months probation, required restitution, payment of costs and a letter of apology, and ordered that she perform fifty hours of public service. On January 20, 1995, the Board issued its amended notice of proposed dismissal. Respondent has been suspended without pay since that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Duval County School Board enter a final order discharging respondent as a classroom teacher for violating Sections 4(a) and (d) of the Duval County Teacher Tenure Act, as amended. The charge that she has violated Section 4(b) should be dismissed. DONE AND ENTERED this 11th day of December 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1995. COPIES FURNISHED: Dr. Larry L. Zenke Superintendent of Schools Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182 Thomas E. Crowder, Esquire 600 City Hall 1300 East Bay Street Jacksonville, Florida 32202 Ms. Gwendolyn M. Beeks 9801 Baymeadows Road, Number 156 Jacksonville, Florida 32202 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent’s teaching certificate and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 484422, covering the areas of biology and mathematics, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a mathematics teacher at Oak Park. Respondent worked at Oak Park from September 25, 2013, to May 20, 2014. On May 21, 2014, Respondent was removed from her classroom as a result of the May 16, 2014, student-smoking incident (the “incident”) described herein and assigned to the school district office in a non-instructional position. Respondent was a first-year probationary teacher at Oak Park. Due to the incident, Respondent’s employment with the school district was not renewed for the following school year. Respondent is currently employed at Emerald High School in Greenwood County, South Carolina. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment. The first session of the Oak Park school day, extending from 9:04 to 9:34 a.m., is called Knights Unite (“KU”). KU is described as: 30 minute period where healthy relationships between the students, faculty and staff of OPMS can be built. It is a time set aside for mentoring, engaging students with interactive activities to build their character, interactive activities to review content and to give each student of Oak Park someone they can trust and confide in. Respondent described the KU period as one in which she could help students to make up work, help them with independent study, allow students to meet with other teachers for help or independent study, engage in certain mandated activities, e.g., bullying lessons, and perform student-related administrative tasks. Fridays were typically independent study days in which students were allowed to make up work from the week. On Friday, May 16, 2014, during the KU period, students were involved in independent study and with filling out required address forms. Students needing to go to the media center, the guidance office, the main office, or to meet with other teachers during the KU period are given passes. Allowing students to engage in those tasks, including issuing passes for students “to get assistance or additional paperwork from a different teacher” was not contrary to Oak Park policy, nor did it violate any standard. Except for the four students involved in the incident, there was no evidence that any student left Respondent’s classroom without a pass. Petitioner suggested that the tasks being performed (or that were supposed to be performed) in Respondent’s class on May 16, 2014, were inconsistent with Petitioner’s written KU guidelines. Since the activities being performed by students, with the exception of those related to the incident, were not alleged as violations in the Administrative Complaint, compliance with the KU guidelines is not at issue. Furthermore, the evidence demonstrates that activities, such as individual mentoring or tutoring and individual catch-up work, are an appropriate use of KU period time. According to Ms. Longo, there were 18 students in Respondent’s KU class on May 16, 2014. At the time of the incident, each student had an individual desk. Currently, as depicted in the photographs in evidence, the classroom has been reconfigured with tables that seat multiple students. At some point during the May 16, 2014, KU period, a group of four of Respondent’s less responsible students huddled furtively in the back of the classroom. The two male students involved, D.L. and J.G., lit the butt of a small “Tiparello”- style cigar, and took a few quick puffs. They had their backs to Respondent’s desk and ducked down to conceal their actions. One of the two female students, J.C., in order to preserve the foolhardy act for posterity, took a cell phone video of the incident. The length of the video was a total of one minute and 51 seconds. The cigar appeared to have been first lit at the 0:05 mark. The youthful miscreants did not intend to be discovered, as evidenced by one student’s hushed statement that “I swear to God if you show anybody that [unintelligible] snitch.” That their actions were not obvious is supported by the lack of attention that they drew from other more conscientious students in the class, who did not look up or react to the act of false bravado. At the 0:17 second mark, Respondent can be seen at her desk at the front of the room attending to H.E., another student who was not involved in the incident. H.E. was generally positioned between Respondent and the cigar-smoking students, shielding Respondent from their actions. Respondent was also in the process of taking attendance. Ms. Longo testified that it is appropriate for Respondent to be at her desk to perform those tasks. Although Respondent and H.E. are only glimpsed at the 0:17 mark, it is not reasonable to conclude that H.E. simply vanished at that point, exposing the four troublemakers to Respondent’s view. Rather, some seconds had to have passed before H.E. moved away. The student’s efforts to hide the cigar and fan away the smoke confirm their efforts to avoid detection. Although J.G. coughed, his proximity to the cell phone (one or two feet) makes it impossible to tell how noticeable the cough would be from a distance. At the 0:25 mark, D.L. eyed the recording cell phone and threw down with a devil-may-care “whazzup, whazzup.” From roughly the 0:33 mark to the 0:44 mark, the youthful miscreants hurriedly hid the evidence and assumed an attitude of casual insouciance. The video then went black from the 0:43 mark to the 0:55 mark and, although the picture returned, the cell phone was clearly being concealed from the 0:55 mark to the 1:03 mark. That thirty seconds of cover and concealment is consistent with Respondent’s testimony that she got up and went over to the students’ desk area. The video resumed at the 1:03 mark and, after a few furtive sweeps of the area, clearly taken from a low vantage point, again went black from the 1:11 to the 1:18 mark. At the 1:18 mark, the video resumed and, at the 1:22 mark, J.G. is seen lighting the half-inch butt with a Bic lighter. The behavior of J.G. and D.L. demonstrated a continued effort to conceal their actions. At the 1:30 mark, the video shows that the students had been “busted.” J.G., in a display of feigned innocence, loudly proclaimed “what is that smell?” By the 1:35 mark, Respondent had called J.G. and the owner of the phone to her desk, and they dutifully complied. An unidentified student mentioned the word “perfume,” and either J.G. or J.C. spoke of “cologne” in an obvious effort to explain the unusual aroma in the room. At the 1:48 mark, Respondent advised J.C. that Respondent would need her phone for the rest of the class. Though occurring after the 1:51 end of the video, Respondent successfully confiscated the phone, which Ms. Longo confirmed was the appropriate course of action. Respondent indicated that she could momentarily smell something unusual in the room, which she attributed variously to incense, cologne, or deodorant. Due to the pervasive musty and mildewy smell in the class caused by a water leak and chronically wet carpeting, along with her blocked sinuses, she could not tell what it was. As stated convincingly by Ms. Pickens, “there were different types of smells in there on one day to the next depending on whether or not they put the fan in the classroom to dry out the carpet.” There was no evidence that Ms. Warren could see what was occurring while taking attendance and consulting with the student at her desk.2/ Petitioner’s speculation that Respondent could have (or should have) seen exactly what was happening at the back of the room was just that - speculation. After J.C.’s cell phone was confiscated by Respondent, D.L. came up with several excuses as to why he should be allowed to leave the classroom. His requests were denied. Thereafter, as Respondent was calling the office to report the incident, D.L. and J.G., followed by the girls, J.C. and C.W., left the classroom without permission. Teachers are not allowed to physically restrain students attempting to leave the classroom. Rather, the teacher is to “push the call button that’s in every classroom immediately and say that so-and-so just walked out of my class.” Respondent complied with that expectation by calling the office, which is an acceptable option. Since no administrators were available, Respondent gave the information regarding the students’ escape from the classroom to Ms. Longo’s secretary. It took a while for anyone to respond to Respondent’s call. The students returned to the classroom after about five minutes. After their return, Mr. Justus, who was the school’s athletic director and “coach” for the social studies department, and a member of Ms. Longo’s “leadership team,” came to the room. Respondent wrote referrals on D.L. and J.G., and they left with Mr. Justus. After the boys were taken from the classroom, Respondent sent an email to Mr. Wade, the associate principal and dean of discipline, and Mr. Justus to inquire about the referral of the girls, J.C. and C.W., and to let them know that she had J.C.’s cell phone. Two periods later, Mr. Wade came to Respondent’s classroom, at which time Respondent turned over J.C.’s cell phone to him. By that time, she had retrieved a cigar wrapper from D.L.’s desk, which was also turned over to Mr. Wade.3/ Ms. Peterson concluded that “[n]o evidence exists to show that Ms. Warren was ever aware that students were actually smoking a cigar in her class.” She further testified that Respondent “wasn’t aware they were smoking. She thought something was wrong, but that doesn’t mean she knew that they were smoking. That could mean that someone’s with something like a piece of paper.” On May 20, 2014, Respondent was removed from the classroom and reassigned to the school district office. Respondent’s inability to see exactly what was occurring in the back of the classroom did not prevent her from suspecting improper conduct by the students and acting on that suspicion by appropriately requesting assistance from administration, confiscating the cellular telephone of a student, and investigating the matter herself to find the wrapper. The tone of the Administrative Complaint gives the impression that J.G. and D.L. put their feet up on their desks and enjoyed a fine Cuban Presidente while under Respondent’s approving gaze. Nothing could be further from the truth. The facts show that J.G. and D.L., in a manner that was as sneaky and surreptitious as possible, lit the small cigar and, over the course of approximately 28 seconds, took a few furtive puffs. After putting it out and hiding the evidence, the miscreants repeated the act for approximately 13 seconds before being nabbed. The suggestion that Respondent neglected her duties, failed to make reasonable effort to protect her students from conditions harmful to learning or to their mental or physical health or their safety, or engaged in personal conduct that seriously reduced her effectiveness as a teacher is simply not supported by the facts of this case.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 17th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2016.
The Issue The issue presented is whether Petitioner timely terminated Respondent's employment, as set forth in the Administrative Complaint filed in this cause.
Findings Of Fact On July 22, 1997, Respondent completed his application for employment as a teacher for the school year 1997-98. He was hired to be the coordinator for the English for speakers of other languages (ESOL) program at Western Pines Community Middle School. That position is a teaching position. Western Pines is a new school, opening in time for the 1997-98 school year. Principal Peggy Campbell determined she needed extra assistance for the school to be ready in time for the students. As with any new school, floors needed to be mopped, windows needed to be washed, supplies needed to be unloaded and stored, desks needed to be placed in the classrooms, books needed to be stamped, and many other things needed to be done to get ready. She requested volunteers from the staff she had hired, and Respondent agreed to help prepare the school for the arrival of students. At the time that volunteers were obtained and began working, Campbell did not have approval to pay any of the volunteers. She subsequently obtained approval. Respondent began working as a volunteer on August 1, 1997. He labeled, stamped, and shelved books. He worked a total of 7 1/2 days. Afterward, he was given a one-time paycheck for those 7 1/2 days based upon a daily rate of pay. In computing the amount to pay him, Petitioner calculated a daily rate for Respondent by dividing his annual salary by 196, the number of duty days for teachers within Petitioner's school system. On August 13, 1997, all teachers reported for duty for the 1997-98 school year. August 13 began the five-day pre-school period for instructional employees, a time during which all teachers attend meetings and prepare for the arrival of students. On that date, Respondent began his professional duties as an instructional staff member of Petitioner's school system. That date was also the effective date for Respondent's instructional position. Starting on August 13, 1997, Respondent's duties were substantially different than they were prior to that date. Prior to August 13, 1997, Respondent's work was akin to that of an incidental day laborer. August 20, 1997, was the first day of classes for students within Petitioner's school system. On January 9, 1998, Principal Campbell met with Respondent and gave him a letter advising him that she was recommending to the superintendent the termination of Respondent's employment, effective January 15, 1998. She told him not to report to the school for those interim days but that he was assigned to his home for those additional days for which he would be paid. On February 21, 1998, the School Board ratified that termination, effective January 15, 1998, as part of its consent agenda at a regularly-scheduled Board meeting. At the time Respondent was notified he would be terminated and at the time of the School Board meeting, annual contracts for that school year had not yet been prepared. There is a normal delay with finalizing annual contracts due to extended negotiations with the teacher's union once the budget is final.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Respondent's employment was terminated within his probationary period. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of May, 1999. COPIES FURNISHED: Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Thomas E. Elfers, Esquire JenniLynn Lawrence, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Pinellas Vocational Technical Institute is operated by the School Board of Pinellas County, Florida and consists of the Police Academy and the Pinellas Corrections Academy. The Corrections Academy and the Police Academy are housed in separate buildings and offer different curriculum and degree programs, although certain faculty and staff members are shared. Students enrolled at the Police Academy or Corrections Academy are usually employed by a police department. The employer police department serves as the sponsoring agency for the student at the Academy. While employed with the Pinellas County Sheriff's Department, the Petitioner, a black male, was enrolled in Class XI at the Corrections Academy. The Petitioner was removed from his class at the Corrections Academy on December 3, 1984 by Mr. Paul Drolet, the instructor and class coordinator. The Petitioner was subsequently discharged from the Academy by Mr. Mario Vitelli, the Assistant Director. On December 3, 1984, Mr. Drolet called roll in class and discovered that a white female student, Donna Harper, was not in her assigned seat. Mr. Drolet asked Ms. Harper why she was not in her assigned seat. Ms. Harper, who had been sitting next to the Petitioner, stated that she was annoyed by the Petitioner and the things that he was doing. Ms. Harper complained that the Petitioner constantly annoyed and bothered her. Ms. Harper stated that the Petitioner constantly opened and closed his briefcase during class and generally displayed a disinterested attitude. This apparently disturbed Ms. Harper. Ms. Harper also complained that the Petitioner's legs and knees were constantly touching hers because he would spread his legs real wide and have them over on her space. The class had been in session for approximately six days and Ms. Harper complained that the Petitioner's actions had been going on since the beginning of class. After Ms. Harper informed Mr. Drolet of Petitioner's actions, he requested that she give a statement to her sponsoring employer, the Hillsborough County Police Department. After Ms. Harper gave her statement, Mr. Drolet called the Petitioner out of class and asked whether or not the Petitioner wanted to talk about the allegations. The Petitioner stated "I didn't do it, and I have nothing to say". Later, Mr. Drolet informed Petitioner that he was being withdrawn from the class. The Petitioner had been enrolled in the previous class (class IX) at the Corrections Academy. While in class IX, the Petitioner was late to class on several occasions, was found in the Police Academy building (students in the Corrections Academy are not allowed to go into the Police Academy building without permission) and was caught using the non-public telephone at the academy for personal reasons. The Petitioner's major disciplinary problem while in class IX was a complaint made against him by Tia Throckmorton, a white female student. Ms. Throckmorton complained to Larry Wagner, the class coordinator, about a series of events involving the Petitioner. Ms. Throckmorton complained that on one occasion, after the class was shown a .22 caliber gun that a female inmate had attempted to smuggle into a local jail by hiding it in her vaginal area, the Petitioner told Ms. Throckmorton that she could probably hide a .38 caliber gun in her vaginal area. Ms. Throckmorton also complained that during class breaks, the Petitioner would constantly touch her on the shoulders and neck, even after she would pull away to demonstrate that she did not want to be touched. On another occasion at the firing range, the Petitioner stood behind Ms. Throckmorton and squeezed next to her in a "grinding" fashion even though there was plenty of space to pass by. Subsequent to that, the Petitioner attempted to follow Ms. Throckmorton home one day after class. Following this last incident, Ms. Throckmorton decided to complain. The administration of the Corrections Academy, through Mr. Larry Wagner, informed the Pinellas County Sheriff's Department of the complaint by Tia Throckmorton. Upon receiving the information concerning Ms. Throckmorton's complaint, the Sheriff's office withdrew the Petitioner from the Corrections Academy and conducted an internal affairs investigation into the incident. The internal affairs investigation resulted in a finding that there was insufficient evidence to either prove or disprove the allegations of Ms. Throckmorton. Thereafter, the Sheriff's office re-enrolled the Petitioner at the Corrections Academy for the next class. Due to a large number of students entering the Corrections Academy in the next term, the administration decided to operate two separate classes simultaneously, numbered X and XI, with Larry Wagner and Paul Drolet as the respective class coordinators. Due to the prior problems that Petitioner had experienced in Wagner's class, Wagner suggested to Drolet that the Petitioner be placed in class XI, so that Petitioner would feel less stigmatized by his previous withdrawal. Drolet agreed, and the Petitioner was assigned to class XI. While in class XI, and prior to the complaint against Petitioner by Ms. Harper, Mr. Drolet had experienced problems with the Petitioner. On several occasions, the Petitioner fell asleep in class, including a class on unarmed self-defense. On another occasion, the Petitioner wore a utility uniform to class after the students had been specifically instructed to wear their dress uniforms. The Petitioner had also been enrolled in a previous class at the Police Academy. While at the Police Academy, the Petitioner fell asleep on several occasions, and wore an improper uniform on at least two occasions. The Petitioner graduated from the Police Academy on January 3, 1984 with an overall rating of "poor" and the lowest grade average of all students in his graduating class. After Ms. Harper made her complaint against the Petitioner, Mr. Drolet considered the Petitioner's past performance and complaint record at the Pinellas Vocational Technical Institute and recommended to Mr. Vitelli, the Assistant Director, that Petitioner be withdrawn from the academy. Mr. Vitelli instructed Drolet to question the Petitioner about the incident. When Drolet questioned the Petitioner, the Petitioner stated that he didn't do anything and that he had nothing to say. Based on the Petitioner's past record of complaints and discipline problems, and on Petitioner's response to the latest complaint, Mr. Vitelli discharged the Petitioner from the Academy on December 3, 1984. Vitelli explained to Petitioner his right to appeal his dismissal from the Academy to the Director of the Pinellas Vocational Technical Institute, to the Director of Adult Education and to the Superintendent of the School Board of Pinellas County. The Petitioner did not avail himself of any of these direct appeals. The Pinellas County Sheriff's office initiated an internal affairs investigation into the complaint made by Donna Harper, which was scheduled to commence on December 5, 1984. On December 5, 1984, the Petitioner resigned from the Sheriff's office. In classes I through XV at the Corrections Academy, a total of 15 different students were withdrawn for disciplinary reasons, 4 of whom were minorities. During the same period, 56 minority students entered the Corrections Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint and the Petition for Relief filed by Mr. Jeffrey C. Harris. DONE and ORDERED this 27th day of March, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1987. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board of Pinellas County Post Office Box 6374 Clearwater, Florida 33518 Jeffrey C. Harris 2805 West Horatio Street Tampa, Florida 33619 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518-4748 Community Relations Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Pinellas Vocational Technical Institute 6100 154 Avenue, North Clearwater, Florida 33520 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as a recitation of testimony. a. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate and/or misleading. a. Rejected as contrary to the weight of the evidence. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate. Partially adopted in Findings of Fact 5 and 8. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as contrary to the weight of the evidence and/or subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 26 Adopted in Finding of Fact 26. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Facts 10 and 18. Rejected as subordinate. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11 and 12. 18. Adopted in Finding of Fact 4. 19. Adopted in Finding of Fact 13. 20. Adopted in Finding of Fact 14. 21. Adopted in Finding of Fact 15. 22. Adopted in Finding of Fact 16. 23. Adopted in Finding of Fact 17. 24. Adopted in Finding of Fact 18. 25. Rejected as subordinate. 26. Adopted in Finding of Fact 18. 27. Adopted in Finding of Fact 5. 28. Adopted in Finding of Fact 6. 29. Adopted in Finding of Fact 20. 30. Adopted in Finding of Fact 21. 31. Adopted in Finding of Fact 22. 32. Rejected as subordinate. 33. Rejected as subordinate. 34. Adopted in Finding of Fact 24. 35. Adopted in Finding of Fact 24. 36. Adopted in Finding of Fact 25.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, 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 13th day of January, 2014.
Findings Of Fact At all times material to this case, Respondent Carl B. Dietz (Dietz) was employed as a member of the instructional staff of Trafalgar Middle School, Lee County School District (District) pursuant to a professional service contract. Throughout Dietz's employment with the District, his annual evaluations indicate that the quality of his work was deemed an "effective level of performance". Dietz was initially employed by the District as a regular teacher on August 15, 1985. Dietz holds Florida Teaching Certificate #543771 issued by the Florida Department of Education. He is certified to teach secondary-level history and junior high school mathematics. For six years prior to the 1991-92 school year, Dietz taught advanced level American history and math at Cypress Lakes High School. Most of Dietz's students at Cypress Lakes were approximately 16-18 years old. A decrease in enrollment at Cypress Lakes resulted in a reduction of teaching staff at Cypress Lakes. Because no other high school instructional positions were open, Dietz was offered and accepted a position at Trafalgar Middle School. During the 1991-92 school year, Dietz taught history to Trafalgar eighth graders. During the school year 1992-93, Dietz was assigned teaching responsibilities for the Trafalgar Middle School sixth grade PASS program math and social studies classes. The PASS (Pupils Achieving School Success) program is a state funded project developed to focus specific attention on students identified as at risk of withdrawal from school prior to high school graduation. Dietz had no previous experience as an instructor in a PASS program. Dietz received no special training for the PASS program. The sixth grade students in the PASS program were approximately 11-12 years old. The nature of the PASS program may result in students who are less disciplined and more disruptive than the students Dietz had previously taught. Dietz taught two PASS classes, a morning group and an afternoon group. Students from both classes testified during the hearing. Conflicts in testimony have been resolved as indicated in the following Findings of Fact. It is alleged that on one day in October, 1992, Dietz, yanked a chair from under a student, resulting in the student's head striking the desk as he fell to the floor. The evidence establishes that the student was sitting sideways in the chair and was rocking back on the rear legs of the chair. Dietz grabbed the seatback and the chair slid from under the student who fell to the floor. The greater weight of the evidence is insufficient to establish that the student struck his head during the fall. In any event, the student was not physically injured in the incident. Dietz asserted that the student had been previously warned about sitting improperly, and that he grabbed the seatback to startle the child and "make the point" that he should sit properly. There is no evidence that the action of Dietz was an appropriate manner in which to discipline the child for sitting incorrectly in the chair. It is alleged that in October, 1992, Dietz addressed a child (whose pronunciation of his first name was poor) by a mispronunciation of the child's name as a means of encouraging the child to pronounce the name correctly. Upon requesting Dietz to correctly pronounce the name, Dietz discontinued his practice. The evidence fails to establish that the child was harmed by the mispronunciation of his name. In October, 1992, Dietz removed a non-functioning clock from the classroom wall and threw it down. The battery came out of the clock and struck a female student's leg, but no injury resulted. The allegation that Dietz's removal of the clock was accompanied by a remark that the "piece of shit" clock was not working is not supported by the greater weight of credible evidence. It is alleged that Dietz threw a pencil and book at one student who came to class without materials. The greater weight of the evidence establishes that Dietz slammed a book down on the table in front of the student, who was being seated away from class as a disciplinary measure. The evidence also establishes that Dietz tossed a pencil to the child. The evidence fails to indicate that tossing a pencil to a sixth grade child is an appropriate method of distributing school supplies. The pencil would have hit the child had he not moved from the path of the projectile, however the evidence does not establish any intent to injure the child by Dietz. In October, 1992, four female students from Dietz's afternoon class locked themselves in a bathroom stall during a rest room break and remained there when the break ended. Standing in the school hallway, Dietz reached into the bathroom, knocked on the stall door and directed the female students to return to class. It is alleged that upon exiting the bathroom, Dietz addressed the students as "lesbians," "perverts" and "gaywads." The greater weight of the evidence fails to establish that Dietz used such language in the presence of the female students or that his action in directing the students to return to class was inappropriate. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words and phrases: "nigger," "nigger shit," and "nigger talk," and instructed one student to "take your black ass back to Africa." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words: "ass," "assholes," "shit," "hell," "fucking assholes," and "fucking jerks." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that on one occasion at the end of the class session during the 1992-93 school year, Dietz instructed a student in the completed class to get his "fat ass" out of the classroom. There was testimony that Dietz directed the student to get his "fat carcass" out of the classroom. While the greater weight of the credible and persuasive evidence establishes that Dietz indeed addressed the child as "fat", it is insufficient to establish that Dietz used the word "ass" in the presence of the child. The evidence fails to establish that use of the descriptive word "fat" resulted in injury to the child. It is alleged that in October, 1992, Dietz threw a plastic cup at a student. The evidence fails to support the allegation. It is alleged that in October, 1992, Dietz threatened to tell the mother of a student that the child was "a big fat lump of nothing." The evidence fails to support the allegation. In October, 1992, a student inquired of Dietz as to whether he believed the students in the class were "brats." Dietz replied in the affirmative. The student then asked if Dietz thought the inquiring student was a "brat." Dietz again replied in the affirmative. It is alleged that Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his car. It is alleged that on the day questioned about the gun, Dietz admitted having the gun in the car. The evidence fails to establish that, on the day questioned, Dietz (who owned several vehicles) had the gun in the glove box of the car driven. However, the evidence establishes that, on at least one occasion, Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his vehicle. The all times material to this case, there was no written School Board policy prohibiting a loaded and cased weapon from being on the school grounds locked in a vehicle glove box. There were no oral directives to faculty that a loaded and cased weapon, locked in a vehicle glove box, was prohibited from school grounds. At one time in the Spring of 1992, the school principal brought a firearm onto school grounds, the thereafter loaded and fired the weapon as part of a demonstration. The District's assertion that the related alleged violation of federal law is sufficient to support termination is rejected. On October 28, 1992, a number of Dietz's students went to the office of a school guidance counselor and voiced a number of complaints about alleged conduct. The counselor noted the complaints and reported the matter to the assistant principal of the school. On October 29, 1992, the assistant principal met with Dietz to discuss the allegations. According to the assistant principal, Dietz admitted to the alleged behaviors, except for one specific accusation regarding addressing a specific student as a "fucking ass." According to Dietz, he did not admit that such behaviors occurred and instead asserts that he attempted to explain some of the reasons for the allegations, including the grades assigned to some of the complaining students. The conflict in recollections is reconciled in favor of Dietz. On October 30, 1992, Dietz met with the principal of the school, during which time Dietz admitted that he had previously stored a loaded and cased handgun in the glove box of one of the vehicles he drove onto school grounds. On October 30, 1992, Dietz was suspended with pay based on the allegations of improper conduct. In November, 1992, an employee of the superintendent of the Lee County school district undertook an investigation of the allegations regarding Dietz. On November 10, 1992, a predetermination conference was held. On November 13, 1992, Dietz was advised that on November 17, 1992, the district superintendant would recommend to the school board that Dietz be suspended without pay and benefits pending termination of employment. Effective November 17, 1992, the board elected to suspend Dietz without pay and benefits. Dietz was notified of the board action by letter dated November 25, 1993. The letter provided that Dietz could request a formal administrative hearing on the matter. By letter dated November 19, 1992, Dietz requested formal hearing of the board's November 17 action.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School District of Lee County enter a Final Order reinstating the employment of Carl B. Dietz and providing for back pay and benefits retroactive to November 17, 1992. DONE and RECOMMENDED this 27th day of July, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7075 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8. Rejected, immaterial. Rejected, not supported by greater weight of credible and persuasive evidence. Rejected. The rest room discussion is irrelevant. The greater weight of credible and persuasive evidence fails to establish that the chair was "yanked" from under the student or that the student struck his head. The alleged lack of an apology is irrelevant. Rejected as to Dietz interaction with Mr. Nolan, irrelevant. Rejected, as to the discussion of poster touching, irrelevant. Rejected, as to the alleged "black talk" remark, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected as to alleged remark that the class "sucks", not supported by the greater weight of credible and persuasive evidence. 20-21. Rejected, not supported by the greater weight of credible and persuasive evidence. 23-25. Rejected, not supported by the greater weight of credible and persuasive evidence. 26. Rejected, subordinate. 28-29. Rejected, not supported by the greater weight of the evidence. 30, 32. Rejected, subordinate. Recitation of testimony not appropriate finding of fact. 33. Rejected, unnecessary. 34-40. Rejected, subordinate, unnecessary. Rejected, irrelevant. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 11. Rejected as to allegation of child striking head in fall, not supported by greater weight of credible and persuasive evidence. 13, 15. Rejected, subordinate. 16. Rejected as to force of toss or intent to strike child, irrelevant, no evidence that such action is appropriate regardless of intent. 17-20, 22. Rejected, subordinate. Rejected, subordinate. Rejected, unnecessary 25-30. Rejected, subordinate. 31-38. Rejected, goes to credibility of witnesses which has been determined as reflected in the Findings of Fact set forth herein. 42, 44. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 John J. Hament, Esquire 1800 Second Street, Suite 785 Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
The Issue The issues to be determined are whether Virginia Young (Respondent or Ms. Young) violated: section 1012.795(1)(g) Florida Statutes (being found guilty of personal conduct, which seriously reduces effectiveness as an employee of the school board); section 1012.795(1)(j) Florida Statutes (violating the Principles of Professional Conduct for the Education Profession as prescribed by the State Board of Education rules); Florida Administrative Code Rule 6A-10.081(2)(a)1. (failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety); and Florida Administrative Code Rule 6A- 10.081(3)(e) (intentionally exposing a student to unnecessary embarrassment or disparagement)1/; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Respondent holds Florida Educator Certificate 624273 in the areas of: Educational Media Specialist; English; Elementary Education; English for Speakers of Other Languages; Guidance and Counseling; Physical Education; Social Science; Business Education; Family and Consumer Science; and Exceptional Student Education. Respondent’s certification is valid through June 30, 2017. Respondent is also certified in Middle Grades Integrated Curriculum, which is valid through June 30, 2017. Respondent taught in the Polk County School District (PCSD) for eight years and retired two years ago. At all times material to these allegations, Respondent was employed as a social studies teacher at Traviss or as an elementary combination teacher at PVS in the PCSD. BATHROOM HALL PASS 2013-2014 School Year For the 2013-2014 school year, Respondent taught tenth- grade English and World History at Traviss. Her classroom was a portable building in the school’s parking lot. Although there was a bathroom in the portable, it had been disassembled and was unusable. When a student needed to use the bathroom, the student obtained a bathroom pass to leave the portable and go to another building where there was a functioning bathroom. Respondent’s policy for any student (pregnant or not) to obtain a bathroom pass was simple: the student had to sign in, find their assigned seat, write down the “SMART Board question” of the day, and go to the classroom aide (or paraprofessional) to obtain a bathroom/hall pass. Each student had an agenda book, and the aide would mark the time of the bathroom pass. If the student was gone too long, the aide would try to find them. Respondent never denied a student’s request for a bathroom pass although she had, on occasion, asked a student if they could wait “five minutes” because Respondent was starting a clip and was concerned she could not replay the clip. Respondent never signed a bathroom pass, but had her paraprofessional or classroom aide handle the passes. There was no evidence adduced by any former student, pregnant or not, who was denied a bathroom pass. E.G. testified there were “students” in her class who were pregnant and, with the assistance of counsel, she confirmed one student’s identity, A.G. However, A.G. did not testify that she was pregnant and A.G. did not testify that she was denied the opportunity to use the restroom. E.G. heard Respondent deny “those students’” request to go to the restroom on a “few occasions.” E.G.’s testimony was unpersuasive. Petitioner’s Exhibit 29 is a verbal warning with a written confirmation regarding Respondent’s alleged denial of pregnant students’ rights to use the restroom when asked. The undersigned acknowledges this warning; however, the non-hearsay testimony at hearing failed to support such a finding. INAPPROPRIATE LANGUAGE 2013-2014 School Year As part of the English curriculum, Respondent taught literature. Each year she used the novel To Kill a Mockingbird, by Harper Lee, which was on the approved reading list in her tenth-grade, English 2 class. In that novel, the “n” word is used once or twice. Respondent does not use the “n” word. E.G. and Ms. Ibarra were questioned about inappropriate language used during their class. Ms. Ibarra thought she was in Respondent’s eleventh or twelfth grade English class, yet she did not recall if the class was discussing a book or a movie when she claimed to have heard the “n” word used. E.G. knew Respondent was her English teacher, but could not recall if the class had been discussing the book when the “n” word may have been used. Both students’ testimony was vague and unpersuasive. TREE NUT ISSUE 2015-2016 School Year Respondent moved to PVS for the 2014-2015 and 2015-2016 school years. At PVS she taught grades kindergarten through fifth grade. Respondent had multiple preparations for the different classes she taught at PVS. Elementary students are young, and in addition to the virtual teaching time, each grade level is brought into the “brick and mortar” school once a month for a two-hour “face-to- face” class. This is to ensure that each PVS student is progressing appropriately and to ensure that each student is not being unduly assisted by their “learning coach,” an adult or other person. At PVS, teachers were expected to contact each student’s parent(s) prior to the school year starting. This “welcome call” was to introduce themselves, provide a course overview, and to chat about the individual student who would be in Respondent’s class. During the 2015-2016 school year, Respondent taught PVS’s first-grade virtual class in addition to other grades. S.D. was in Respondent’s first-grade class. S.D. is now an eight-year-old student residing and attending school out of Florida. While residing in Florida, S.D. was home schooled for the kindergarten school year. S.D. attended PVS as a first-grade student during the 2015-2016 school year. The following year S.D. attended PVS for second grade. S.D. has an allergy to tree nuts. Prior to the start of S.D.’s first-grade year, Respondent called and spoke with S.D.’s mother. During that telephone call, Respondent explained that she incorporated food in her classroom. At this mention, S.D.’s mother first raised S.D.’s severe tree nut and sesame seed allergy. S.D.’s mother advised Respondent that S.D. would probably stay home if the parents were told walnuts were going to be used in the face-to- face classroom exercise. S.D.’s mother offered to bring in other equivalent materials when food was to be used in the classroom. In September 2015, at the first face-to-face classroom meeting, S.D.’s parents spoke with Respondent, and reaffirmed S.D.’s tree nut allergy. S.D.’s parents renewed their offer to supply equivalent things for S.D. to use when food was to be used in the classroom curriculum. On October 6, 2015, Respondent entered school counselor Balladin’s office and noticed an EpiPen. In her discussion with Ms. Balladin, when told the EpiPen was S.D.’s, Respondent said the EpiPen could not be S.D.’s because it was an adult, expired EpiPen. Ms. Balladin directed Respondent to telephone S.D.’s mother about the EpiPen left in Ms. Balladin’s office. Respondent confirmed she spoke with S.D.’s mother as directed. Respondent recorded the conversation in the PVS computer system as “[Respondent] called LC to inform that they [S.D.’s parents] had left [S.D.’s] peanut allergy pen in Ms. Balladin’s office. Mom said she had a spare and would pick it up on Friday morning.” On December 8, 2015, S.D. and one other student were the only two students to participate in the face-to-face first- grade class at PVS. Towards the end of the class, Respondent provided each student with a “Christmas tree brownie still in the wrapper on the plate.” Respondent told the students not to eat the brownie until they checked with their respective mothers as it was close to lunch time. Respondent walked the two students to the front office area of the school. When S.D.’s mother saw S.D., she noticed that S.D. had a partially eaten brownie. S.D.’s mother noticed there was no wrapper to the brownie and she asked Respondent about it. S.D.’s mother wanted to know the brand to purchase it. Respondent admitted that she read the label of ingredients on the box before she purchased the brownie treats, and she did not think it would harm S.D. S.D.’s family left PVS to drive home, which was an hour or more away from PVS. Shortly after the family left PVS, S.D. became ill, frequently vomiting into a bucket on the way home. S.D.’s parents reported the illness to PVS. The brownie given to S.D. came from a box labeled “Christmas Tree Brownies [by] Little Debbie.” The brownies were Christmas tree shaped with green icing and small edible “candy toppers” on top. The box contained a list of more than 15 ingredients and also contained the following: ALLERGY INFORMATION: CONTAINS WHEAT, SOY, MILK, EGG. MAY ALSO BE PRESENT IN THIS PRODUCT: PEANUTS, TREE NUTS. Respondent thought the brownie was safe for S.D. It was not. Respondent initially testified that she did not receive any training from the school about how to deal with students’ allergies, but then immediately claimed she obtained allergy training three months after this December 8 event. The source of that training was unclear. The evidence regarding the tree nut allergy issue was established through clear and convincing evidence: Respondent provided a food product that contained tree nuts to S.D., a student who was known to have a tree nut allergy.
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 Counts 2 and 3 in the Amended Administrative Complaint, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the Education Practices Commission, and dismissing Counts 1 and 4. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 20th day of February, 2018.
