The Issue The issue in this case is whether there is just cause to terminate Richard Allen's employment with the Broward County School Board based upon the allegations made in its Amended Administrative Complaint dated March 6, 2012.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Allen started his employment with Petitioner in 2002. He was employed pursuant to a professional services contract. During the 2010-2011 school year, Respondent was assigned to Piper High School ("PHS") as an American government teacher. For the school year, Allen received all relevant policies and procedures including the PHS Faculty Handbook, Computer Acceptable Use Policy, Instructional Performance Assessment System Policy, Code of Ethics, and Principles of Professional Conduct. The handbook also covered ethics for computer networking, online communication, and professional standards as well as provided directions to obtain website locations for the Code of Ethics, Principles of Professional Conduct for the Education Profession in Florida, School Board policy 5306, and rules regarding confidentiality of records. During the prior 2009-2010 school year, Allen had been investigated by Petitioner and the Florida Department of Education ("DOE") for failing to follow district policy regarding collection of student funds when Respondent collected money from his students and obtained a personal magazine subscription that he used in his classroom without going through the bookkeeper ("magazine incident"). Written student statements were obtained during the investigation. Ultimately, Allen contested the proposed discipline, a five-day suspension, for his actions in DOAH Case No. 10-9262, and the charges were dismissed with an award of back salary. By certified letter dated May 13, 2010, Petitioner notified Respondent of Disciplinary Action and provided a General Release Agreement. The letter also stated: This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. The Disciplinary Action & General Release Agreement attached to the letter also read in section 3: This Agreement and the action taken herein will become a part of the employee's employment history with the Broward County School Board. This document and the investigative file on which it is predicated will become public record within ten (10) days from the execution of this Agreement, in accordance with Florida law and Administrative Code. By letter dated August 10, 2010, Petitioner sent Respondent a letter notifying him that a hearing would take place regarding the magazine incident. The letter also stated: This is your notice pursuant to Florida Statute 1012.31 that the material contained in your investigative file, is a public record and it will become available for inspection by the public ten days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. By letter sent certified mail dated August 16, 2010, Petitioner notified Respondent that he was going to be suspended without pay for the magazine incident. The letter also stated: This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. In the middle of August 2010, Allen also received the investigative file from DOE containing all the student statements from the magazine incident. In the beginning of September 2010, Allen opened the read only investigative file and reviewed it. In September 2010, Respondent also read two articles in the paper claiming that he had stolen money from the students for the magazine incident. In order to defend his honor, on October 5, 2010, Respondent disseminated an email through CAB, the school's intranet e-mail system, to all of the school's approximately 232 staff members, including teachers, custodial personnel, cafeteria personnel, technicians, and clerical staff, requesting support as teacher for the year. The email stated: Dear Piper Family: We hope that you all will come out and vote for me for Teacher of the Year in the election to be held shortly. Attached are two documents of some very important information which outline my Campaign Platform. These documents summarize the kinds of things that need to be changed here at Piper. Cordially Submitted, Richard S. Allen Attached to the email was Respondent's platform and six handwritten student statements. The student statements spoke positively about Allen as a teacher and contained students' names, their parents' names, students' home addresses, students' phone numbers, students' dates of birth and students' description of events, which occurred within Respondent's class that had been the subject of School Board of Broward County and DOE magazine incident investigations. Allen obtained the students' statements he attached to the email from the DOE investigatory file from the magazine incident sent to Allen in September 2010. Allen believed the documents were public since they had been released to him. Both PHS instructional and non-instructional personnel received the email and attachments.2/ Approximately 103 members of PHS faculty and staff opened the email including a custodian and the cafeteria manager. When Principal Valdez found out the email was on the PHS email system, she contacted the special investigative unit ("SIU") to see how to proceed because she believed the six student statements that had been distributed were confidential. During the magazine incident investigation, Valdez had promised the students and parents that their statements provided for the investigation would remain confidential. SIU instructed Valdez to file a Personnel Investigation Request regarding the email. On or about October 11, 2010, Valdez requested an investigation from the SIU and provided the information about Allen's October 5, 2010, email to all the PHS staff with the campaign platform and student statements attached. Subsequently, District Investigator JoAnn Carter was assigned to investigate the allegations against Respondent. After Carter completed the investigation, she sent the report to the Professional Standards Committee ("PSC"). PSC reviewed the investigation and determined what policies, procedures, and statutes Respondent's actions may have violated. It was determined that Respondent's actions were egregious and PSC recommended discipline to the superintendent. Prior to the October 5, 2010 email, Respondent's only prior discipline had been two written reprimands. One written reprimand was for failure to properly prepare lesson plans and the other one was for inappropriate conduct at a student-parent conference. By letter dated June 28, 2011, Allen was notified that Superintendent James F. Notter would recommend to the School Board that Respondent should be terminated from his employment for the October 5, 2010, email he disseminated that the School Board determined disclosed confidential student information.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order that: Sustains Respondent's charges of violating rule 6B- 1.006(4)(c) and the School and District Technology Usage policy 5306 sections 6(b)1(f)and(g); Provides Respondent a written reprimand for the three violations; Dismiss Respondent's charges sections 1002.20, 1002.22, and 1012.33, Broward County School Board policy 5100.1, 20 U.S.C.A. section 1232(g), and rules 6(B)-1.001, 6(B)- 1.006(3)(f),(h),(i), 4(b), 5(a), and 6(A)-1.0955, 6(B)- 4.009(1)(2) and (3); Immediately reinstates Respondent Richard Allen; and Issues Respondent back salary. DONE AND ENTERED this 31st day of October, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day October, 2012.
The Issue Whether Respondent committed any of the offenses alleged in Petitioner's Amended Administrative Complaint; and, if so, what is the appropriate penalty to be imposed against her Florida Educator's Certificate.
Findings Of Fact Petitioner, as Commissioner of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educational certificate and are alleged to have violated provisions of section 1012.795, Florida Statutes, and related rules. Respondent holds Florida Educator's Certificate 892498, covering the areas of biology and reading, which is valid through June 30, 2016. At the time of the final hearing, Respondent taught for the Palm Beach County School District for 16 years. At all times pertinent hereto, Respondent was employed as a science teacher at John Leonard High School. There are three incidents that serve as the basis for the Complaint. The first incident concerned Respondent's physical confrontation with L.P., a tenth-grade female student, on December 15, 2011. Respondent pinned L.P. against the hallway wall before grabbing the hood of her sweatshirt (hoodie) and forcibly slinging her back into the classroom. The second incident occurred on or about September 19, 2012, which involved Respondent's inappropriate conduct with F.M., a 17-year-old student. The third incident occurred the same day when, following the F.M. incident, Respondent threatened the students who witnessed the incident with a failing grade if they reported her misconduct. L.M. Incident C.S., a then 16-year-old female student, was in Mr. Palmberg's science class on December 15, 2011. The teacher was absent for the week, and the class required an aide. C.S. and another student, K.D., went to locate an aide for the class. Walking down the hallway, they encountered Respondent, who had a female student, L.P., backed against the hallway wall next to the classroom door. Respondent was screaming in L.P.'s face. L.P. appeared frightened and looked towards C.S. causing Respondent to put her finger on L.P.'s neck and scream, "Look at me." C.S. and K.D. went upstairs for a moment, but returned shortly thereafter. Respondent and L.P. were still in the hall. L.P. was wearing a hoodie. Respondent grabbed L.P.'s jacket by the hood and slung her into the classroom so hard that L.P. stumbled and caught herself from falling. C.S., who credibly testified at the hearing about this event, gave a written statement on January 12, 2012, to the district investigator along with K.D., N.H. (a student), and S.S. (a student). On this same date, L.P. also gave a written statement to the district detailing this interaction with Respondent. The student statements, other than that of C.S., although hearsay, are relevant because they corroborate C.S.'s hearing testimony. The minor inconsistencies between these reports and C.S.'s testimony at hearing are consistent with discrepancies commonly found in eyewitness reports of events that occurred quickly and over five years ago. Respondent's argument,2/ that C.S. testified about an incident which occurred January 12, 2012, rather than on December 15, 2011, is specious at best and casts serious doubt on Respondent's credibility. Although the written statements were provided on January 12, 2012, it is clear they all described an incident which occurred on December 15, 2011, before the winter break. These statements were authored during an investigation into a separate incident between Respondent and L.P. which occurred on January 11, 2012, in which Respondent is alleged to have improperly touched L.P. while arguing about L.P.'s cell phone.3/ The fact that counsel for Petitioner mentioned the January 12, 2012, date when questioning C.S. does not diminish C.S.'s credibility. The undersigned credits the written statements of C.S., K.D., N.H., S.S., and L.P. regarding the timing and events of the December 15, 2011, hallway incident. Respondent admits she had a loud altercation with L.P. on December 15, 2011, however, she disputes pushing L.P. against the wall, touching her, or slinging her into the classroom by her hoodie. Respondent claims L.P. became loud and disruptive when Respondent refused to allow L.P. to go to the front office to meet with her probation officer. Respondent asserts that her testimony was corroborated by fellow Teacher Antoinette Hornyak. Although Ms. Horynak heard a loud commotion between Respondent and L.P. in the hallway and described the student as loud and agitated, she testified it appeared that Respondent had the situation under control and that she did not open the door to find out what was going on. She returned her attention to her class while Respondent and L.P. remained in the hall. Accordingly, she could not know whether Respondent put her finger on L.P.'s neck or slung her into the classroom by her hoodie. The fact that L.P. was loud or belligerent leaving the classroom with Respondent is not relevant to whether Respondent engaged in the behavior described by L.P., C.S., N.H., S.S., and K.D. Further, Respondent's theory that the students concocted this story after the fact because they were "friends," is not viable. At the final hearing, C.S. could not recall the name, race, hairstyle, or any other detail about L.P., which is not surprising because the incident occurred six years prior. Other than N.H., the other witnesses described L.P. as "the girl" or the "female student." It is clear that they barely knew each other, which may explain why they waited until the investigation into the January 11, 2012, touching incident before providing a written report. There is no believable explanation for five similar statements to be provided by students who do not know each other very well about the same hallway incident unless it, in fact, occurred. Although Respondent tries to portray L.P. as an out-of-control, belligerent aggressor, Respondent did not send L.P. to the office or call for assistance. Respondent's explanation simply is not credible.4/ Respondent was given a Written Notation of a Verbal Reprimand for her inappropriate verbal and physical interaction with L.P. F.M. Incident and Failing Grade Threat F.M. was a student in Respondent's science class on September 19, 2012, when Respondent became angry because F.M. refused to straighten papers on her desk. When F.M. stated he did not create the mess, Respondent told him to get out of the class. F.M. tried to sit down on a stool near the classroom door, but Respondent called him an idiot and pulled it out from under him. She then pushed and kneed him out the door, before slamming the door. Two students, T.C. and J.V., who testified at the hearing, stated F.M. asked if an administrator was coming to the classroom, but Respondent refused to contact the office. Both students verified Respondent's inappropriate actions with F.M. J.V. described F.M. as "calm" and Respondent as "just mad." Robin Burke, who is a 25-year educator with the district, had several of these students in her math class. The day following the incident, T.C., one of her students, along with J.V. and K.D., approached her to request information on a schedule change out of Respondent's science class. When prompted, they described Respondent's inappropriate interaction with F.M. the previous afternoon. They related that Respondent called F.M. an idiot, before grabbing his shirt and shaking, pulling, and pushing him. Respondent also called F.M. a "dumbass." He was ordered to leave the room, which he refused. Respondent then kneed and kicked him out of the room. These three students also told Ms. Burke that after literally kicking F.M. from the classroom, Respondent told the remaining students that they would likely be interviewed, after which she would be shown the statements with the students' names. Respondent threatened to fail any student who gave a statement regarding her altercation with F.M. Later that day, F.M. came to Ms. Burke's sixth-hour class. He had not told either his mother or any administrator about Respondent's actions. Ms. Burke questioned him about the incident and told him to inform his mother. Ms. Burke, believing this activity by Respondent was child endangerment and her own license could be at risk if not reported properly, then took F.M. to Valerie Silverman, the assistant principal, who had Ms. Burke file a complaint against Respondent with the Department of Children and Families. When speaking with Ms. Silverman, F.M. was very upset. F.M.'s mother was notified, and he was removed from Respondent's class. Respondent was later issued a written reprimand for her physical altercation with F.M. and for calling him names. Respondent admits that she was engaged in an altercation with F.M. on September 19, 2012, but denies calling him names or physically touching him. Respondent also denied threatening student witnesses to the event with failing grades. According to Respondent, F.M. was angry because Respondent made him take a test although he had been absent for several days. When turning in his paper, he threw it on Respondent's desk, causing the stack of papers to scatter. According to Respondent, when Respondent asked him to straighten the papers, F.M. became loud and argumentative. Respondent then asked F.M. to exit the classroom, but he did not want to. F.M. asked to have an administrator called to remove him from the room. According to Respondent, things escalated quickly, and she and F.M. had a "tussle" at the door. However, Respondent asserts that she was five months pregnant at the time with a high-risk pregnancy and would not have gotten into a physical confrontation with F.M. who was bigger than she. The testimony of T.C. and J.V. was clear and convincing that the incident with F.M. occurred as they described. Again, the minor variation between their testimony and written statements can be attributed to the passage of time since the incident. Both of these former students are now in their early 20s and have no apparent reason to fabricate their recollection of the events in question. Further, both students were adamant and credible that the class was threatened by Respondent with failing grades if they provided statements about what they saw. J.V. explained that he gave a verbal statement to the officer investigating (which was then written by the investigator) because he was already failing the class and was afraid of Respondent's retaliation. Their version of what occurred is consistent with their written statements, the verbal reports they provided to Ms. Burke, and with the written statements of other students who were present, including F.M., K.J., C.S., and T.O. The students' version of what occurred between F.M. and Respondent is the only one which explains why three students would seek a class transfer the following day. Accordingly, their testimony is credited and that of Respondent is not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order placing a written reprimand in Respondent's certification file and placing Respondent on one school year of probation (180 days). It is also RECOMMENDED that Respondent be responsible for the payment of monitoring costs in the amount of $150.00. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 14th day of June, 2017.
