The Issue The issue for determination is whether Respondent's employment as a teacher with Petitioner should be terminated for alleged willful neglect of duties and gross insubordination.
Findings Of Fact At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the district of Miami-Dade County, Florida. Judith Zucker (Respondent) began her employment with Petitioner, as a teacher, in 1968 and continued her employment with Petitioner until 1972. She began her employment with Petitioner again in 1989. Respondent holds a teacher certification in elementary education. She is also certified to teach the learning disabled and mentally handicapped. At all times material hereto, Respondent was employed by Petitioner as a teacher, assigned to Little River Elementary School (Little River), Citrus Grove Elementary School (Citrus Grove), and Miami Jackson Senior High School (Miami Jackson). Little River Elementary School In August 1989, Respondent resumed teaching with Petitioner. She was employed at Little River pursuant to a continuing contract of employment. On January 8, 1991, Respondent suffered injuries to her neck and spine when she attempted to break-up a fight between two students. Despite her injury, she immediately returned to work, not losing any time from work. In November 1994, Respondent was injured again. While walking down the hall of the school, a student, for whom she was not responsible, was hanging on a door. The student pushed himself off the door and fell on top of Respondent onto a cement floor. As a result, Respondent's original injury was aggravated. During the 1994-95 and 1995-96 school years, Respondent was a Title I tutor. She tutored three to eight students at a time in reading. During the 1996-97 school year, the reading program changed. For this school year, Little River, along with some other schools, was placed on Florida's critically low school list. Petitioner initiated a program called Operation Safety Net in which schools on the critically low list began using the Successful for All/Roots and Wings program (Success for All Reading Program). The Success for All Reading Program was for students who were critically deficient in reading. Little River and Petitioner's other critically low schools began using the Success for All Reading Program for the 1996-97 school year. In the Success for All Reading Program a tutor had a group of 18 to 20 students for 90 minutes in the morning. For the rest of the day, the tutor worked one-on-one with first grade students. Respondent was not assigned to the Success for All Reading Program at the beginning of the 1996-97 school year. Respondent requested her principal to assign her to the Success for All Reading Program due to her medical condition resulting from the injuries to her neck and spine for which she was still undergoing physical therapy. The principal agreed to assign Respondent to the Success for All Reading Program because the principal wanted to make sure that Respondent was provided with the opportunity and the time to attend therapy. Respondent was assigned to the Success for All Reading Program with a modification. Respondent was allowed to assist other tutors with testing and was working in groups of two to four students, significantly smaller than the regular groups of 18 to 20 students. Using the smaller groups for Respondent caused the other morning groups to become even larger. At the time that the principal made the assignment with the modification, the principal expected the duration of the assignment to be short, but the assignment spanned the entire school year. Having groups expanding beyond the 18 to 20 students for the entire school year created a hardship in that it was counter-productive for the critically deficient readers. In the fall of 1996, Respondent was again injured. This time, Respondent was injured by a student to whom she was tutoring one-on-one. Respondent did not lose any work as a result of the injury she sustained. Respondent had now been injured by students at Little River on three separate occasions: January 8, 1991, November 1994, and the fall of 1996. Despite the injuries that she sustained, she immediately returned to work after each occurrence without any loss of time. At the end of a school year, teachers indicate what they would prefer to do during the following school year. In May or June 1997, the principal of Little River advised Respondent that she would be assigned to teach a regular class, a third grade class, for the 1997-98 school year. Respondent sought a transfer from Little River in August 1997. No transfer occurred. When Respondent returned to Little River in August 1997 for the 1997-98 school year, Respondent informed the principal that she was still in physical therapy; that she was unable to write on the chalkboard because to do so caused her to shake; and that she was, therefore, unable to return to a regular classroom. Respondent requested a return to tutoring. The principal informed Respondent that the tutors had already been assigned and that she (Respondent) was expected to return to a regular classroom. However, for the first two weeks of school, the principal allowed Respondent to tutor. The principal contacted Petitioner's Office of Risk Management1 to determine Respondent's status as to whether she was able to return to a regular classroom. Risk Management advised the principal that Respondent was cleared to return to her regular duties, to return to a regular classroom. On September 19, 1997, the principal explained to Respondent that, according to Risk Management, she was cleared to return to her regular duties and that she would be returning to a regular third grade classroom. The third grade classroom would contain no more than 29 to 33 students. Respondent informed the principal that she (Respondent) was not able to return to a regular classroom and that her doctor would have to contact Risk Management. On September 23, 1997, the principal again contacted Risk Management which again informed the principal that Respondent was cleared to return to her regular duties. The principal advised Respondent of the information that she had obtained from Risk Management. Respondent again informed the principal that she was unable to return to a regular classroom. Risk Management had also advised the principal that, if Respondent continued to insist that she was unable to return to a regular classroom, the principal should direct Respondent to leave the school's campus. The principal did as Risk Management advised and directed Respondent to leave the school's campus. Respondent complied with the principal's directive and left the campus of Little River. The Executive Director of Risk Management (Executive Director) had advised the principal to direct Respondent to leave the school's campus if Respondent insisted that she could not return to a regular classroom. He advised the principal to direct Respondent to leave the school's campus because of Respondent's medical condition. The Executive Director had reviewed Respondent's file and had become aware of a letter dated September 3, 1997, from Dr. Raul Grosz, Respondent's authorized2 neurologist. The letter stated in pertinent part: She [Respondent] has at this time chronic persistent [sic] and discomfort. I am recommending that she be placed in a non- threatening environment in which she does not have to move furniture or lift furniture whatsoever. I also feel that she is unable to carry a full class-load at this time. As a result of the letter, the Executive Director authorized the payment of workers' compensation benefits from the date that Respondent was directed to leave Little River's campus by the principal. Even though Dr. Grosz opined that Respondent was "unable to carry a full class-load," he did not state the number of students as to what represented a full class-load. However, Dr. Grosz considered a full class-load to consist of a large group of students who were not well-behaved and who were potentially dangerous. Dr. Grosz did not inform Respondent as to what he considered to be a full class-load. There was no neurological basis for restricting Respondent to a non-threatening environment or a reduced class size. Respondent requested Dr. Grosz to add the restrictions. Respondent also expressed her desire to be in a non-threatening environment. Respondent's requests seemed reasonable to Dr. Grosz and he attempts to accommodate his patients' subjective feelings, so Dr. Grosz included the restrictions in his letter. It was Dr. Gorsz's intent that Respondent and Petitioner attempt to reach a mutually acceptable solution and that Petitioner would provide what it determined was appropriate. As of September 19, 1997, Respondent had exhausted all of her available sick and personal leave. Petitioner and the United Teachers of Dade (UTD) have entered into a collective bargaining agreement (UTD Contract). The UTD Contract provides generous, extensive leave provisions. Respondent never applied for any type of leave, including leave pursuant to the UTD Contract. The Executive Director was authorized to direct a teacher to a work assignment. In determining a work assignment for Respondent, the Executive Director sought assistance from and relied upon Petitioner's Instructional Staffing Department to locate a position for Respondent which would meet her medical restrictions. Citrus Grove Elementary School The Director of Instructional Staffing informed the Executive Director that a varying exceptionalities (VE) position in special education was available at Citrus Grove. A VE teacher teaches a group of students who have different exceptionalities. The VE teacher may simultaneously teach the students with different exceptionalities in the same class or the teacher may teach the students with one exceptionality during the school day at one time and may teach other students with a different exceptionality during the same school day at another time. VE teaching is used for mildly handicapped students. By letter dated October 7, 1997, the Executive Director informed Respondent that a VE position was available at Citrus Grove and that the VE position was within her certification and met her medical restrictions. He also indicated that the position was an appropriate accommodation for Respondent. Moreover, the Executive Director directed Respondent to report to Citrus Grove immediately and to call the principal at Citrus Grove for further reporting instructions. Respondent failed to call the principal. She also failed to report to Citrus Grove. Respondent decided, without making any personal investigation, that the VE position at Citrus Grove was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Citrus Grove. Respondent is in pain daily. She wears a Tens Unit to short-circuit some of the pain. Respondent expresses being afraid of being in groups wherein she may be bumped which would worsen her condition. However, Respondent's authorized neurologist, Dr. Grosz has no concern regarding physical contact by bumping causing further neurological damage or problems. He has more concern regarding further neurological damage or problems caused by Respondent being involved in a high-speed motor vehicle accident. Respondent did not observe the placement or inquire about the profiles of the students who she was going to teach. The composition of the VE class, as to students, at Citrus Grove was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with the students. The UTD Contract provides for the use of the Safe Physical Management (SPM) program, which is the use of physical restraints for severely disabled students. Teachers, who are in self-contained programs for severely emotionally disturbed students and autistic students, receive training in techniques to contain highly disruptive students under unusual circumstances. The techniques are used to prevent injuries to persons, including the student, and damage to property. Before SPM is used, Petitioner's Multi-Disciplinary Team must recommend its use and the use of SPM must be documented on the student's Individualized Education Program (IEP). One student in Respondent's assigned class had an IEP which approved SPM. However, based upon the student's progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Citrus Grove; mildly handicapped students, not volatile students, are placed in the VE classes. Dr. Grosz opined that Respondent could teach a class of 25 to 30 well-behaved students. The VE classes at Citrus Grove were not full-load classes. The VE classes consisted of 7 to 10 mildly disabled students at any one time; whereas, the regular classes consisted of between 28 and 39 students. Elementary VE classes contained no more than 12 to 15 students. The number of students in VE classes at Citrus Grove were smaller than VE classes throughout Petitioner's district. Respondent also erroneously relied upon Dr. Grosz's opinion that she was unable to teach a full class-load. What Respondent considered a full class-load and what Dr. Grosz considered a full class-load were not the same. Pursuant to what Dr. Grosz considered a full class-load, Respondent would have been able to accept the VE position at Citrus Grove. Respondent would have been the third VE teacher at Citrus Grove. The VE students were all in one room separated by a partition. Respondent's class would have been on one side of the partition and one VE teacher would have been in the class with Respondent. The other VE teacher and the other VE students would have been on the other side of he partition. Citrus Grove was a safe, non-threatening environment. The needs of the VE students at Citrus Grove were more an educational concern than emotional, and the VE students were well-behaved. As to Respondent being injured at Citrus Grove in the VE position, such an occurrence was unlikely. Respondent would not have been required to lift or move any furniture or any heavy items at Citrus Grove. Respondent was qualified to teach the VE class at Citrus Grove. The Citrus Grove assignment met Respondent's medical restrictions. The assignment of Respondent to Citrus Grove was reasonable. Respondent's refusal of the Citrus Grove assignment was unreasonable and unjustified. Approximately one week after Respondent was assigned to Citrus Grove, Respondent, on October 13, 1997, presented to Dr. Grosz for an examination. Respondent did not inform Dr. Grosz of the assignment at Citrus Grove. Informing Dr. Grosz of the assignment would have provided Dr. Gorsz with an opportunity to explain to Respondent what he meant by his opinion. Respondent did not also inform Dr. Sanford Jacobson, her authorized psychiatrist, of the Citrus Grove assignment when she presented to him for a psychiatric evaluation on October 14, 1997. Dr. Jacobson prepared a report of the evaluation dated October 16, 1997.3 In the "Summary and Conclusions" section of his report, Dr. Jacobson states, among other things, the following: There have been three incidents which have resulted in injuries as described by Mrs. Zucker [Respondent]. While some of them may have been somewhat surprising, difficult to manage, and distressing, I would not think that they are the kind of injuries that one would see as causing a Post-Traumatic Stress Disorder. . . . The most prominent symptoms are depressive symptoms. Clinical diagnosis at present is that of: Axis I: Mood disorder associated with cervical disc disease and stenosis with depressive-like episode. * * * It would appear that her depression is related to the injuries. . . . At this time I do not believe she can resume full classroom duties. In essence, Dr. Jacobson's diagnosis was that Respondent was suffering from depression related to her pain and discomfort from her physical injury. Even though Dr. Jacobson opined that Respondent could not resume "full classroom duties," he did not state the number of students as to what he considered a full classroom. However, Dr. Jacobson considered a full classroom to consist of approximately 25 to 30 students or more. As a result of Respondent not reporting to Citrus Grove, day-to-day substitutes filled her position. The needs of the VE students were not met with such an arrangement. Miami Jackson Senior High School On or about October 15, 1997, one of Respondent's physicians had placed Respondent on a no-work status. Subsequently, on November 10, 1997, Dr. Grosz returned Respondent to work but with restrictions. Dr. Grosz states in his report dated November 10, 1997, among other things, the following: She [Respondent] remains able to perform at light duty status with no lifting of furniture allowed and I will defer to psychiatry in terms of her emotional complaints. The Executive Director consulted again with Petitioner's Instructional Staffing to locate a position for Respondent. Instructional Staffing informed him of a VE position at Miami Jackson. On December 3, 1997, the Executive Director informed Respondent that a VE position at Miami Jackson was within her certification and met her medical needs. He directed Respondent to report to Miami Jackson. The Executive Director also directed Respondent to call the principal at Miami Jackson for further reporting instructions. Respondent failed to report to Miami Jackson. She also failed to call the principal at Miami Jackson. Respondent decided, without making any personal investigation, that the VE position at Miami Jackson was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Miami Jackson. Respondent did not observe the placement or inquire about the profiles of the students whom she was going to teach. The composition of the VE class, as to students, at Miami Jackson was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with students. The VE classes at Miami Jackson were not full-load classes. The regular classes at Miami Jackson averaged approximately 35 students; whereas, the VE classes consisted of 14 to 21 students per class period in Respondent's proposed classes. The students in the VE classes were mildly disabled, with the majority of the students being learning disabled and a few being emotionally handicapped and a few educationally mentally handicapped. Many of the students were being mainstreamed into the regular school setting. A majority of the students were on track for a standard diploma. Three students in Respondent's proposed class at Miami Jackson had IEPs which approved SPM. The students would have been in Respondent's proposed class in 1998. The students' prior IEPs had approved SPM and the SPM was carried over to Miami Jackson. However, based upon the students' progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Miami Jackson; SPM is only used in severly emotionally disabled classes at Miami Jackson. Miami Jackson was a safe, non-threatening environment. Respondent would not have been required to lift or move any furniture or any heavy items at Miami Jackson. Respondent was qualified to teach the VE class at Miami Jackson. However, the Miami Jackson assignment failed to meet Respondent's medical restrictions. The Miami Jackson assignment met Dr. Grosz's medical restrictions; but, it failed to meet Dr. Jacobson's medical restrictions. Dr. Jacobson did not state in his report the size of the class that he recommended that Respondent teach. Nor did he recommend to Respondent the size of class that she should teach. At hearing, Dr. Jacobson opined that he would recommend that Respondent teach a class with 7 to 10 students; however, he would not recommend that Respondent teach a class with 14 to 21 students. Respondent's proposed VE classes at Miami Jackson consisted of 14 to 21 students. The assignment of Respondent to Miami Jackson was unreasonable. Respondent's refusal of the assignment to Miami Jackson was reasonable and justified. It matters not that Respondent was unaware of the size of class recommended by Dr. Jacobson; it is sufficient that the assignment failed to meet his medical restrictions. Even though Respondent did not know the size of class to which Dr. Jacobson was referring, she relied upon his report, as well as Dr. Grosz's opinion, in refusing the assignment to Miami Jackson. As a result of Respondent not reporting to Miami Jackson, day-to-day substitutes filled her position until a permanent teacher could be assigned. Dr. Grosz examined Respondent again on December 12, 1997. Respondent did not advise him of her assignment to Miami Jackson. Because Respondent had failed to report to Citrus Grove and to Miami Jackson as directed, the Executive Director turned Respondent's case over to Petitioner's Office of Professional Standards (OPS). By letter dated January 26, 1998, OPS advised Respondent, among other things, that she had been absent without authorized leave and that such absence constituted willful neglect of duty and subjected her employment to termination. OPS also requested that Respondent provide a written request within 10 working days if she wanted a review of her situation. Respondent failed to reply to OPS' letter. However, Respondent's counsel for workers' compensation responded. The response from Respondent's counsel indicated that Petitioner was aware why Respondent was not working, but his response failed to specifically address the assignments to Citrus Grove and to Miami Jackson. Petitioner took action on March 18, 1998, to suspend Respondent and dismiss her from employment. According to Petitioner's computerized attendance records, at that time Respondent had been absent without authorized leave since September 19, 1997. From September 19, 1997, to October 7, 1997, Respondent was not absent without authorization. On September 19, 1997, Respondent informed the principal of Little River that she was unable to teach the regular third grade class. Subsequently, on September 23, 1997, the principal directed Respondent to leave Little River, upon the advice of the Executive Director, and the Executive Director authorized Respondent to receive workers' compensation benefits retroactive to the date that she was directed to leave. Moreover, Respondent was not directed to report to Citrus Grove until October 7, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Judith Tucker without pay, but not dismissing her from employment, and reinstating Judith Tucker under the terms and conditions deemed appropriate. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 4th day of June, 1999.
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida. DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452 Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause. COPIES FURNISHED: James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Octavio J. Visiedo, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
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 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 in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that: No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused M.S. to feel embarrassment, fear, and the threat of physical punishment. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system. DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida. DONALD D. CONN 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 14th day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5. Rejected as not a finding of fact but a conclusion of law. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8. 25-28. Rejected and adopted in part in Finding 9. Adopted in Finding 10. Rejected as not based on competent substantial evidence. The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, Southwest Largo, Florida 34640 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400
Conclusions THIS CAUSE was considered by the School Board of Pinellas County, Florida, at its regular meeting held at 5:00 p.m. on December 14, 2004, and the Board, having received and reviewed the record and the recommended order of the Administrative Law Judge, Florence S. Rivas, and the exceptions filed by the Respondent and the response to those exceptions filed by the Superintendent, and having heard argument from counsel for the Respondent and the Superintendent, and being fully advised in the premises, THEREFORE, determines that the Respondent’s misconduct warrants the recommended penalty of termination. IT IS THEREUPON ORDERED by the School Board of Pinellas County, Florida, that: 1. The Respondent’s exceptions to the recommended penalty are denied. 2. The recommended order dated October 7, 2004, to terminate the employment of the Respondent, a copy of which is attached hereto and incorporated by reference, be, and the same is hereby adopted as the Final Order of the School Board. 3. The Respondent, Lincoln M. Loucks, is hereby dismissed and terminated as an employee of the School Board of Pinellas County, Florida, effective the end of the workday, December 14, 2004. DONE AND ORDERED this 14th day of December, 2004. THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA Cha By:'{ ry bees ‘ (ote 2 Attest: fon wil “ N.Wilorf Ex Officio Secretary This Final Order was filed with me on this / ¢ day of December, 2004, and a conformed copy of the same was furnished to Thomas L. Wittmer, attorney for the Petitioner, on said date by hand-delivery, and to Mark Herdman, attorney for the Respondent, on said date by regular U.S. Mail, postage prepaid. Forde Was Betz Deborah Beaty Clerk of the Board NOTICE All parties have the right of judicial review of this Final Order in accordance with section 120.68, Florida Statutes. In order to appeal, a party must file a notice of appeal with Deborah Beaty, the Clerk of the School Board, 301 4" Street S. W., Largo, FL 33770, within thirty (30) days of the rendition of this order (which occurred on the date such Final Order was filed with the clerk as set forth above), and must also file a copy of the notice, accompanied by filing fees, with the Clerk of the Second District Court of Appeal, 1005 East Memorial Blvd., Lakeland, FL 33801, tel. (863) 499-2290. Review proceedings shall be conducted in accordance with the Florida Appellate Rules, and specifically, Rule 9.110 of such Florida Appellate Rules.
