The Issue Whether Petitioner, Lee County School Board (School Board), has established "just cause" to terminate the Respondent, Patricia Slade (Ms. Slade), as a teacher.
Findings Of Fact Ms. Slade is a teacher at Lehigh Acres Elementary School and has worked for the Lee County School District since August 19, 1997. As a teacher, Ms. Slade is an instructional employee and her employment is governed, in part, by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). The School Board is charged with the operation of the free public education in Lee County, Florida, and has the authority to terminate or suspend instructional employees. See § 1012.22(1)(f). The record shows by preponderance of the evidence that Ms. Slade has fallen asleep in her classroom during the school day on several instances and on one occasion left her classroom unattended. The record shows that for school year 2010-2011, Ms. Slade was a teacher for pre-kindergarten children, who are four-years-old. The School Board witnesses credibly testified that they had observed Ms. Slade asleep in the classroom on different dates. Ms. Sanchez, a grandmother of one of the students in Ms. Slade's classroom and school volunteer, credibly testified that she had observed Ms. Slade asleep three or four times during the school year. In one instance, Ms. Sanchez observed Ms. Slade asleep during the children's naptime for a period of approximately 30 minutes. Ms. Sanchez's testimony was corroborated by the credible testimony of Ms. Hicks, a former teacher and two teacher aides, Ms. Serrano and Ms. Kinney. Ms. Hicks credibly testified that she observed Ms. Slade on three occasions. Ms. Hicks described one of the occasions when she walked into Ms. Slade's classroom during the afternoon and found her asleep on the floor. Similarly, Ms. Serrano credibly testified that sometime in January 2011, during the students' naptime, Ms. Kinney had come to her classroom and asked Ms. Serrano to watch Ms. Slade's class while Ms. Kinney left to use the restroom. Upon entering Ms. Slade's classroom, Ms. Serrano found Ms. Slade asleep on the floor. Ms. Serrano credibly testified that she woke Ms. Slade up, because Ms. Serrano had to go back to her own classroom. Finally, Ms. Kinney, who was Ms. Slade's teacher aide, credibly testified that Ms. Slade had fallen asleep once before the winter break and more frequently after the winter break. In a written statement provided by Ms. Kinney to the school, Ms. Kinney indicated by February 2011, Ms. Slade was falling asleep in the classroom "once a week to every other week." During one of Ms. Slade's midday naps after the winter break, Ms. Kinney took a picture with a cell phone of Ms. Slade sleeping on the floor. The photograph, which was admitted into evidence, clearly shows Ms. Slade asleep on the floor of the classroom with the students asleep on their mats around her. The record also shows that on February 15, 2011, Ms. Slade fell asleep in the classroom. Mr. Dworzanski, assistant principal for the school, credibly testified that he went to Ms. Slade's classroom after being called by Ms. Kinney, because Ms. Slade was asleep. Mr. Dworzanski credibly testified that he found Ms. Slade "sitting underneath where the smart board was propped up against the wall and she was asleep." Mr. Dworzanski further testified that Ms. Slade was difficult to wake and that she was incoherent when she was finally aroused. Based on her incoherence, Ms. Slade was taken to the school nurse and paramedics were called. After this February 15, 2011, incident, Ms. Slade did not return to the class. Ms. Slade offered that she had "passed out" on the February 15, 2011, incident as the result of acute bronchitis. While Ms. Slade testified that she had acute bronchitis, her testimony was not credible for showing that her diagnosis of acute bronchitis was the cause for her being asleep or in an unconscious state on February 15, 2011. Therefore, the undersigned finds that there was no competent evidence to explain why Ms. Slade slept during the school day. Mr. Dworzanski credibly explained that a teacher is not permitted to sleep during the pre-kindergarten student's naptime, because the teacher must monitor the students and keep them safe. Apparently, not all four-year-old students sleep during naptime and the teacher needs to keep an eye on the students. Next, the record supports the finding that on one instance Ms. Slade left her class unattended. Ms. Kinney credibly testified that on one occasion Ms. Kinney went to the cafeteria to retrieve the school lunches. Upon returning to the classroom, Ms. Kinney did not see Ms. Slade in the classroom. Further, there was no adult supervision in the classroom when Ms. Kinney entered the class with the lunches. When asked by Ms. Kinney, the students informed her that Ms. Slade had gone to the bathroom. Ms. Slade returned "several minutes" after Ms. Kinney had returned to the classroom. Ms. Slade does not have any prior disciplinary record with the school, and was an effective teacher when she had been observed teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Patricia Slade, as a teacher. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether Petitioner is entitled to an unpaid leave of absence from employment as a teacher of the Flagler School District, from July 1, 1996 until expiration of her commission as School Board member on November 19, 1996.
Findings Of Fact Petitioner is a teacher employed by the Flagler County School District. Petitioner has been employed for more than three years, has been recommended by the School Board and reappointed and has become eligible for, and has received, a Professional Services Contract with tenure. Petitioner has been employed by the Flagler County School System for six years. She is enrolled in the Florida Retirement System, and her eligible employment under that system consists entirely of her service in the Flagler County School System. Petitioner was appointed by the Governor as a School Board member on or about September 5, 1995. She had just begun School Year 1995-1996 as an elementary teacher at Bunnell Elementary School. Petitioner was appointed to serve as a School Board member until November 19, 1996. Her appointment expires upon the election and start of a member to fill the remaining two years of the term of a deceased member of the School Board. Following her appointment to the School Board, Petitioner applied for a leave of absence as teacher in order to take her position as a School Board member. Petitioner sought an unpaid leave of absence from the time of her appointment to the School Board until the end of the 1995-1996 School Year. The Superintendent recommended that her request be approved and the School Board approved it. At that time, the Superintendent made clear to her that any leave of absence beyond June 30, 1996 would be subject to the School Board's approval, notwithstanding the Superintendent's current or future recommendations. Petitioner's request for leave of absence near the commencement of School Year 1995-1996 presented no administrative inconvenience to the School District, and minimal disruption of the routine of her students. Petitioner was tendered renewal of her teaching contract for the 1996- 1997 School Year, apparently effective August 13, 1996. Petitioner timely applied to the Superintendent for an extension of her leave of absence as a teacher for that part of School Year 1996-1997 that overlapped the time up to the expiration of her term as a School Board member, November 19, 1996. The Superintendent recommended that Petitioner's request for extension of leave of absence without pay for the applicable portion of School Year 1996- 1997 be granted. In considering Petitioner's request for an extension of her leave of absence into School Year 1996-1997, the Superintendent considered the requirements of efficient operation of the School District, including tentative discussions with his staff about possible positions suitable to Petitioner's experience upon her projected return November 19, 1996 from her requested extended leave of absence. The position to which Petitioner has been appointed at Bunnell Elementary School commencing August 13, 1996 is not being held open by Respondent, but has been filled by another teacher irrespective of these proceedings. There is a tentatively identified position suitable to Petitioner's experience. Mr. Bowen, Director of Personnel, Transportation, and Insurance, opined that if the tentatively identified position were not filled until November 19, 1996, it might be disruptive to good education of the particular type of students targeted for the program. The School District has no imminent need to fill the tentatively identified position, but there is no guarantee it still will be available on November 19, 1996. In the interim, other positions may open through maternity leave, illness, death, etc. or they may not. On average, there are three or four teaching positions that open and that must be re-filled every school year. There is no evidence that a position which opens, if any, will be one for which Petitioner is qualified. If there is no position for which Petitioner is suitable available on November 19, 1996 she cannot be placed in Flagler County. Seniority has no effect; suitability by educational qualifications and credentials does. If Petitioner's leave of absence is not approved and she fails to commence work on August 13, 1996, she will forfeit her contract as a teacher. If, after November 19, 1996, Petitioner is neither a School Board member nor a teacher on approved leave of absence, she will no longer be covered by the Florida Retirement System. If Petitioner is denied leave and returns to the position which is now available she will lose no employment benefits. The Superintendent recommended to the Respondent Board that the extension of Petitioner's leave of absence be approved because of the extraordinary circumstance of her gubernatorial appointment to the position of School Board member, and because the requested leave period was for such a short portion of School Year 1996-1997, (approximately 96 days including weekends and autumn holidays when no teaching occurs), that it was acceptable within his expert educator administrative experience. On April 23, 1996, the Respondent School Board voted to refuse the Superintendent's recommendation to extend Petitioner's leave of absence without pay for the additional time she would otherwise be teaching. Petitioner's request was the only recommended leave request not approved at that School Board meeting. An extended leave for over one school year has not been granted by the Flagler County School Board since 1978. The Respondent Board had no evidence before it other than the Superintendent's recommendation when it considered the extension of Petitioner's leave. During the Superintendent's thirteen-year experience which has been since 1983, the Board has always accepted his recommendations with respect to leaves of absence. Due to the death of another School Board member and the inability of Petitioner to participate in the vote, only three Board members participated in the vote on the Superintendent's recommendation for extension of Petitioner's leave of absence. Member Dance moved that the leave be denied because the Board had never before granted an extended leave for an employee to accept a full time salaried position. The motion was approved by two members, Ms. Dance and Mr. Marier. The only "concerns" expressed by Ms. Dance and Mr. Marier, who testified at formal hearing, related to speculation and assumptions that Petitioner presented a case of first impression, certainly for their School Board and probably for the State of Florida, and that if Petitioner were granted an extended leave of absence, it might be difficult to administer the system in the event of a deluge of similar requests from teachers requesting leave without pay to take other salaried positions. Ms. Dance has served on the School Board for twelve years and felt that in a growing school system, such as the Flagler County School District, it is inefficient to remove teachers and then attempt to have positions made available to them upon return from leave. If extended leave is granted, Petitioner will not teach for roughly 96 days of the 1996-1997 School Year and will only teach in Flagler County if re- employed in a position actually available on November 19, 1996. See, Findings of Fact 12-16 supra. Superintendent Kaupke shared Ms. Dance's concern for orderly administration but still recommended approval of extended leave for Petitioner. On average, leaves of absence of varying duration are recommended and granted for a dozen or more teachers each School Year, and there are three to four permanent teacher replacements each year without any significant effect on efficiency of the system or disruption of the education of even elementary school students. In the past, the Superintendent has consistently denied requests of employees to take other salaried positions and the School Board has not granted any. In one instance, a teacher lied to Dr. Kaupe about his reason for requesting a leave of absence without pay and took a salaried teaching position in another state. The Superintendent would not have recommended a leave of absence be granted had he known the true circumstances. During her employment as a teacher, Petitioner also worked part-time in a separate job as a child care apprenticeship instructor. The School Board has no rules, policies or past precedents which forbid dual employment by school teachers, so long as the second job does not interfere with their responsibilities under their teaching contracts with the School Board. For the balance of 1996, all regular School Board meetings are scheduled to be held at 7:30 p.m. on the third Tuesday of each month. Although this schedule is subject to change, at the time of formal hearing herein, there were no scheduled events for School Board members during a school teacher's normal duty hours. Petitioner's requested extended leave of absence was volitional, but was not submitted for the purpose of accepting another salaried position which would physically prevent the performance of her duties as a teacher. Rather, it was submitted in order to conform to the requirements of Section 112.313(10) F.S. and the holding in Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1980).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Flagler County enter a Final Order granting Petitioner's request for extension of unpaid leave of absence through November 19, 1996. DONE AND ENTERED this 8th day of August, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 8th day of August, 1996.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue Whether just cause exists to sustain Respondent's five-day suspension from employment without pay with the Petitioner based on the allegations in the Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a collective bargaining agreement under the United Teachers of Dade ("UTD"). Weatherspoon has been a physical education teacher for 28 years with the School Board. In 2013, Weatherspoon started working at Hibiscus Elementary School ("Hibiscus"). He is the only physical education teacher for grades two through five. Weatherspoon runs a structured class. When students arrive at their physical education class, they are expected to stand in a straight quiet line, and then go into the physical education shelter, and sit down for taking roll. Weatherspoon uses a chain of consequences for student misbehavior. It progresses from warnings, to exclusion from activities, to parent contact, then to detentions and referrals. During the 2018-2019 school year at Hibiscus, K.C. was a fourth-grade student in Respondent's physical education class. On or about March 5, 2019, K.C. and another student got into a physical fight. Weatherspoon excluded K.C. and the other student from activities and put them in time-out for two days, which meant K.C. had to sit next to the wall during the physical education class instead of participating. After K.C.'s punishment was completed, he should have been rejoining the activities for the physical education class. However, on March 7, 2019, when rejoining the class, K.C. attempted to be first in line and started fighting with student J to be first. Weatherspoon responded to K.C.'s second fight by instructing K.C. to go back to the time-out area against the wall because he was putting his hands on somebody again. Weatherspoon also instructed student J to go to the time-out area for his misbehavior and student J went to time-out. K.C. repeatedly told Weatherspoon "no" and refused to go back to the time- out area after Weatherspoon instructed him to do so. Another student, B.C., walked over during Weatherspoon's attempt to have K.C. go back to time-out and then B.C. informed Weatherspoon that K.C. had done his time already. Weatherspoon responded to B.C., "Don't get involved with this. This is not your concern." Afterwards, B.C. immediately turned around, and walked back to sit down. Next, Weatherspoon redirected his attention back to K.C., repeatedly instructing him to go sit at the wall. K.C. continued to respond "no" he was not going to sit at the wall. Weatherspoon firmly directed K.C. to sit at the wall with a raised voice. Upset, K.C. walked out of the gym instead of following Weatherspoon's instructions for his misbehavior. Weatherspoon called security to report that K.C. had left the class early. The next day, Weatherspoon attended a parent teacher conference with Principal Veronica Bello ("Bello") and K.C.'s parents about his interim failing grade in physical education. After the discussion about K.C.'s interim failing grade, the meeting turned confrontational and K.C.'s father accused Respondent of pushing K.C., which was the first time Weatherspoon was made aware of any allegation he pushed K.C. The School Board investigated the K.C. pushing allegation. During the investigation, written statements were taken from five students, including B.C., that were in K.C.'s physical education class. None of the students reported witnessing Weatherspoon push K.C. on March 7, 2019. K.C.'s written statement dated March 11, 2019, stated that Weatherspoon pushed him twice and that Weatherspoon also pushed B.C. once on March 7, 2019. Ultimately, based on the investigation, probable cause was determined to support the allegation that Weatherspoon pushed K.C. On August 22, 2019, a conference-for-the-record ("CFR") meeting was held to discuss the investigative findings. Respondent was present at the CFR. Following the CFR, the School Board adopted the recommendation that Respondent be suspended for five days for the March 7, 2019, incident because Respondent had been previously counseled and issued a directive not to interact with children by pushing them. Prior Disciplinary History On or about September 13, 2018, Weatherspoon received a written reprimand after a School Board investigation concluded that he shouted, kicked, and pushed a student. Weatherspoon's reprimand, in pertinent part, directed Respondent to: Strictly adhere to all Miami-Dade School Board Policies; specifically, 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 3213, Student Supervision and Welfare. Cease and desist from using physical means to discipline or redirect students while working for M-DCPS; Cease and desist from placing your hands on students for any reason while working as an employee of M-DCPS; and Safeguard emotional and physical well-being of students at all times while working as an employee of the District. * * * 8. Conduct yourself; both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. P9-10 Hearing At hearing, K.C. admitted that "[he] got pretty upset" when he was told to go to time out again. K.C. unpersuasively claimed during the hearing that Respondent pushed him in the stomach one time. However, K.C.'s testimony is contrary to his written statement from the investigation where he wrote that Weatherspoon pushed him twice.1 Similarly, K.C. also testified Weatherspoon pushed B.C., which conflicts with B.C.'s testimony at hearing that Respondent "did not touch [her]."2 The undersigned does not credit K.C.'s testimony based on his contradictory statements about the events on the date of the alleged incident, which diminishes the trustworthiness of his testimony. At hearing, Weatherspoon provided credible testimony regarding the events of March 7, 2019, and his interactions with K.C. Weatherspoon testified that an oral dispute occurred between K.C. and him. Weatherspoon credibly explained that after directing K.C. to go to time-out several times, K.C. repeatedly refused to go to the wall stating, "no," and then K.C. walked out of the physical education class. Weatherspoon also credibly made clear, "I did not touch him." Findings of Ultimate Fact Weatherspoon's reliable testimony precludes a finding that he acted in the fashion alleged in the Notice of Specific Charges. Accordingly, the undersigned finds that Weatherspoon's credible and persuasive testimony established that no physical contact was made with K.C. on March 7, 2019. Therefore, no competent substantial Pet. Ex. 8. The undersigned finds that B.C.’s testimony that Weatherspoon pushed K.C. is not credible because the evidence shows that B.C. was walking away back to her seat when the alleged incident occurred. Additionally, B.C. did not report any pushing incident in her original student statement. Moreover, B.C. only reported an alleged incident when questioned by an investigator approximately seven months later. Likewise, the undersigned rejects K.C.’s mother’s testimony because if a parent had been informed that their child was pushed by a teacher, in all likelihood, that allegation would be the first thing and main topic discussed at the parent teacher meeting before any failing grades, not the discussion topic at the end of the meeting. evidence established any factual basis for the School Board's proposal to suspend Respondent for five days for the offenses charged in the Notice of Specific Charges.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing the Notice of Specific Charges, rescinding its previous decision to suspend Respondent without pay for five days, and awarding him back pay. DONE AND ENTERED this 17th day of March, 2021, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this proceeding is whether Petitioner, St. Lucie County School Board, has just cause to terminate Respondent's employment.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned credits and makes the following findings of material and relevant facts: Lockridge has been employed by the School Board and last worked as an ESE behavior technician at Northport K-8 School. Pet. Exh. 1. Lockridge is a continuing status employee covered under the Collective Bargaining Agreement ("CBA") between the School Board and the Classroom Teachers' Association Classified Unit ("CTA/CU"). Resp. Exh. 6. The CTA/CU consists of behavior technicians, paraprofessionals, bus paraprofessionals, and clerical staff. Tr. II, p. 180, lines 10-14. During the 2014-2015 school year, Lockridge was assigned to Teacher Amber McDonald's self-contained classroom for intellectually disabled students at Floresta Elementary. The intellectually disabled classroom is for students with emotional disorders and students with an intelligence quotient ("IQ") under 69. Tr. I, p. 51, line 25-p. 52, line 2. For the 2014-2015 school year, there were five adults working in Ms. McDoanld's classroom: Randolph Lockridge, behavior technician; Sharon Koen, paraprofessional; Stephanie Ludwig, paraprofessional; Ms. McDonald, classroom teacher; and Deborah Ramsingh, student teacher. Tr. I, p. 52, line 24-p. 53, line 7. There were approximately 12 students in the classroom. Tr. I, p. 53, lines 8-10. Student D.S. was an eight-year-old ESE student whose primary disability is intellectual. D.S. is non-verbal and has Down's syndrome. Pet. Exh. 7. Because of his disability, D.S. is limited to two-word utterances "here and there." He has an IQ below 60 and intellectually he is on about a one and one-half- year-old level. Tr. I, p. 54, lines 10-17. September 8 and 9, 2014, Incidents with D.S. On September 8, 2014, Ms. Ramsingh was engaged in a lesson with the students on using crayons, teaching them how to hold the crayons and how to draw on the paper. D.S. kept taking his crayons and throwing them on the floor. She observed Lockridge take the student's hand and press his fingernail into the palm of D.S.'s hand. The student screamed "ow" and pulled his hand back. Tr. I, p. 34, lines 9-18. Lockridge looked at him and asked, "Why are you crying, what's wrong?" Tr. I, p. 35, lines 14-15. Ms. Ramsingh reported what she saw the following day to Ms. McDonald, the supervising teacher in the classroom. Tr. I, p. 35, line 25-p. 36, line 12. On September 9, 2014, when Lockridge and D.S. returned to the classroom from physical education ("PE"), Ms. Ramsingh observed another interaction between them. D.S. had his crayons, and he threw them on the floor again. Lockridge took his hand and pushed his fingernail into the palm of the student's hand again. He said "ow" again, but continued to throw his crayons on the floor. Lockridge pressed his finger into the student's hand a second time. The student said "ow" again. When Lockridge realized Ms. Ramsingh was looking at him, he commented, "I shouldn't do that, they don't like when I do that, some people think it is abuse." Tr. I, p. 36 line 22-p. 37 line 9. Ms. Ramsingh went to Ms. McDonald and told her that Lockridge put his fingernail in the student's hand two more times, and she told Ms. McDonald the statement that Lockridge made. Tr. I, p. 38, lines 12-18. Ms. McDonald left the classroom to report it. Tr. I, p. 38, lines 17- 20. Ms. Ludwig took D.S. into the restroom and yelled for Ms. Koen to come into the restroom. Tr. I, p. 39, lines 14-18. Ms. Koen told Lockridge to get Ms. McDonald. Tr. I, p. 40, lines 9-14. The staff had ice packs on D.S. Tr. I, p. 40, lines 21-23. Ms. Ramsingh observed the fingernail marks in D.S.'s hand and the ice that the staff was putting on D.S.'s wrist. Tr. I, p. 47, lines 5-9. Ms. Ramsingh gave a statement to law enforcement the following day. Tr. I, p. 41, lines 3-7; Pet. Exh. 4. She also provided a statement for the School Board's investigation. Pet. Exh. 7. Ms. McDonald testified about what she observed on D.S.'s body (after the student had returned from P.E.). She described it as a fresh bruise about three to four inches on both of D.S.'s wrists; it looked like he had a hand mark on both his wrists, and it was purplish already. Tr. I, p. 55, lines 5-11. D.S. did not have any bruises on his body before he went to PE. Ms. McDonald asked Lockridge what happened. Lockridge said he did not know, "maybe he fell." Tr. I, p. 56, lines 1-2. Lockridge said he had to help D.S. walk. Tr. I, p. 56, lines 5-6. D.S. did not have any bruising on his body when he left the classroom for PE. But, he returned with bruises on his wrist, and Lockridge was responsible for supervising D.S. while he was at PE. Tr. I, p. 73, lines 17-25. Ms. McDonald testified that her observation of Lockridge was that there were a lot of times he was loud and instead of de-escalating a situation, he would often escalate it. Tr. I, p. 59, lines 1-3. There were parents of children that Lockridge had worked with who had concerns about Lockridge. As a result, Ms. McDonald restricted him from working with specific students in the classroom. Tr. I, p. 58, lines 4-5 and lines 15-18. As a behavior technician, Lockridge was trained in Crisis Prevention Intervention (CPI). Pet. Exh. 20 and Exh. 23. The purpose of CPI is to de-escalate a situation before it ever comes to the point of having to restrain a child. Tr. I, p. 59, lines 4-8, and p. 59, lines 12-14. Ms. McDonald testified that de-escalation means to approach the student and get them to calm down, to breathe. Tr. I, p. 60, lines 1-6. Ms. McDonald also testified that it is not appropriate to restrain a child by the wrist where bruising would be caused. Tr. I, p. 62, lines 21-24. If the child begins to resist, "the teacher should not move, but should stand there until the child is ready to move." Tr. I, p. 64, lines 2-4. Lockridge provided a statement to the principal regarding the September 9, 2014, incident with D.S. Pet. Exh. 9. Law enforcement was contacted. Tr. I, p. 56, lines 14- 15; Pet. Exh. 4. On September 10, 2014, the school security officer, Frank Sisto, notified Maurice Bonner, executive director of Human Resources, of Ms. Ramsingh's report. Pet. Exh. 11. On September 10, 2014, Mr. Bonner hand-delivered a Formal Notice of Investigation and Temporary Duty Assignment to Lockridge and also verbally notified Lockridge of the allegations. Pet. Exh. 6; Tr. II, p. 171, lines 23–p. 172, line 11. Lockridge was temporarily assigned to the ESE office pending an investigation. On March 19, 2015, the School Board's internal investigation concluded. Pet. Exh. 7. On May 1, 2015, Mr. Lockridge received a Letter of Reprimand from Mr. Bonner and was reassigned to Northport K-8 School as a behavior technician. Pet. Exh. 15. Involvement by Mr. Maurice Bonner Mr. Bonner testified that he discussed Lockridge's conduct and his expectations concerning future conduct with Lockridge. Specifically, Mr. Bonner explained to Lockridge that inappropriate discipline of students was not acceptable behavior and that he was to cease and desist from any type of such discipline in the future. Tr. II, p. 174, line 15-21. As executive director of Human Resources for St. Lucie County Public Schools, Mr. Bonner is in charge of the hiring process for applicants, in charge of records for the school district employees, supports administrators in the discipline process, works with employees on leave, interprets School Board policy, and provides support to the superintendent and the School Board members. Tr. II, p. 168, lines 12-17. Mr. Bonner is responsible for applying and enforcing School Board Policy Chapter 6.00, Human Resources. Tr. II, p. 169, line 24–p. 170, line 4. When an allegation of inappropriate conduct or violation of School Board policy is made for an individual who interacts with students, and if it rises to the level of institutional abuse, the school district's protocol is for the School Board administrators to contact the Department of Children and Families, law enforcement, the human resources administrator, and then the parent. Tr. II, p. 171, lines 5-15. After Lockridge was assigned to Northport K-8 School on May 1, 2015, there was another incident involving Lockridge and a disabled student, V.S.I. Tr. II, p. 175, lines 14-18. On January 20, 2015, when Lockridge said he did not want to give any further statement, he and Victoria Rodriguez, his union representative, asked for a copy of the incident report from the law enforcement officer. Tr. II, p. 179, lines 21– p. 180, line 3. The School Board provided the incident report to Lockridge and Ms. Rodriguez, and Lockridge wrote a statement. Pet. Exh. 10. Lockridge said he was too nervous (about the meeting) and he did not want to sit down and answer questions. But, he eventually wrote his statement after reviewing law enforcement's incident report while his union representative was present. Pet. Exh. 10; Tr. II, p. 182, line 6. By letter dated June 29, 2015, Superintendent Genelle Yost informed Lockridge that she intended to recommend to the School Board that he be terminated. Pet. Exh. 22. Mr. Bonner, in his conversation with Lockridge regarding the first incident (with Student D.S.), warned and instructed Lockridge to not use inappropriate discipline on students. Despite this warning, a few weeks later at Northport K-8 School, Lockridge used inappropriate discipline on a student again. Mr. Bonner, as an administrator, had given Lockridge a previous directive that was not followed. In Mr. Bonner's professional opinion, that constituted insubordination. Tr. II, p. 185, lines 17–p. 186, line 1; Pet. Exh. 24. Mr. Bonner testified that sitting on a student's hands is not appropriate discipline. It is not an appropriate method of restraint of a student. Tr. II, p. 186, lines 5-9. In addition, it constitutes a violation of the code of ethics of the standards for employees in the education profession, putting students in danger of harm. Mr. Bonner stated that "We're in charge of their health, welfare and safety and that's not meeting that standard." Pet. Exh. 24; Tr. II, p. 186, lines 10-14. Commenting on the incident involved, Mr. Bonner felt that "sticking a thumb down in a student's palm" was indecent conduct and can be considered abusive to a student. Tr. II, p. 186, lines 21–p. 187, line 1; Pet. Exh. 24. In his opinion, Lockridge's conduct constituted unsatisfactory work performance since he had harmed a student. He also felt it constituted neglect of duty and violation of any rule, policy, or regulation. Tr. II, p. 187, lines 5-18; Pet. Exh. 24. Mr. Bonner explained how progressive discipline works: We have several steps that we can use as far as disciplining employees based on their conduct and based on the severity . . . if we believe that the incident or the behavior is severe enough, we can skip steps . . . we can start immediately with termination if it's severe enough. If we don't believe it is severe enough to go that way, then we go down that continuum--a letter of concern, letter of reprimand, suspension or termination. Tr. II, p. 191, lines 7-23. When you look at progressive discipline, you have to look at what the previous action is. If you're going to look at multiple offenses of the same nature, you can't discredit that. T. II, p. 193, line 23–p. 194, line 2. In Mr. Bonner's opinion, Lockridge's second incident of sitting on a child's hand is "also abusive and discourteous conduct, it's immoral and indecent, it's negligent because he was told not to use inappropriate discipline, it's unsatisfactory work performance, and it's a neglect of his duty because it's not proper protocol or training for restraint of a student. His conduct is also a violation of the rules, policies, and regulations." Tr. II, p. 194, lines 3-10; Pet. Exh. 24. Lockridge had a duty and responsibility, and he failed to discharge that duty knowingly, and that was negligence, in Mr. Bonner's opinion. Tr. II, p. 194, lines 23-25; Pet. Exh. 24. Lockridge knew that sitting on a child's hands was not a proper restraint technique under the CPI training that he has received as a behavior technician for the St. Lucie County Public School System. He was told, based on a previous instruction, that sticking his thumb down in the student's hand was not appropriate discipline or restraint of a student. He knew that what he was doing was not appropriate and that it did not meet the standards of the St. Lucie County Public School System nor the training he received. Tr. II, p. 195, lines 11-23. Mr. Bonner told Lockridge when he gave him the Letter of Reprimand that if Lockridge violated any of the School Board policies again, more severe disciplinary action could be taken. Tr. II, p. 197, lines 13-22. The standard for skipping steps in progressive discipline is based on the employee's behavior. Tr. II, p. 198, lines 12-15. "It is on a case by case basis . . . if you did something very egregious, we don't have to start at the beginning of that continuum. Based on the behavior of the employee then [sic] dictates where we go on to that continuum." Tr. II, p. 198, lines 17-23. May 19, 2015, Incident with V.S.I. Jennifer Staab was a behavior technician at Northport K-8 School. Tr. I, p. 80, lines 1-6. Ms. Staab was certified in CPI. Tr. I, p. 81, lines 5-9. She worked with students in an emotionally behaviorally disturbed ("EBD") classroom on May 19, 2015. It is a self- contained classroom. Tr. I, p. 82, lines 1-7. On May 19, 2015, there were eight or nine students in the EDB self-contained classroom. Tr. I, p. 82, lines 11-14. There was only one way into the desk; the desk was pushed up against the computers. Tr. I, p. 83, lines 11-15. Ms. Staab heard a slap and that drew her attention to that direction. Tr. I, p. 84, lines 5-8. Lockridge was sitting on the desk; his back was towards V.S.I. Tr. I, p. 84, lines 11-12. V.S.I. was sitting in the desk. Tr. I, p. 84, lines 14-18. When Lockridge got off of the desk, Ms. Staab noticed deep indentations, at least two or three of them, on the student's one arm. Tr. I, p. 85, lines 22–p. 86, line 5. Ms. Staab concluded that Lockridge had to have been sitting on V.S.I.'s hands. Tr. I, p. 86, lines 16-18. From the way behavior technicians are trained, Ms. Staab considered Lockridge being seated on the desk and trying to prevent the student from getting out of the desk, to be an inappropriate restraint. Tr. I, p. 87, lines 14-22. If the student is not a threat to themselves or others, then physical restraint is not appropriate. Tr. I, p. 89, lines 15-18. While doing a single-hold restraint, the adult is behind the child. Tr. I, p. 93, lines 1-4. Ms. Staab never observed Lockridge behind the child. Tr. I, p. 93, lines 5-7. Ms. Staab noticed two indentations on V.S.I.'s arm, about three inches long. Tr. I, p. 93, lines 8-19. Testimony of Randolph Lockridge Ms. Staab did not witness V.S.I. trying to elope or run from the classroom. Tr. I, p. 98, lines 22-24. Lockridge admitted that he took hold of V.S.I.'s wrists, causing bruising to her wrists. Pet. Exh. 16; Tr. II, p. 213, lines 6-9. From Lockridge's perspective, "it was crisis because she was not being safe . . . she was 'not complying' with his verbal direction." (emphasis added). Tr. II, p. 213, lines 19-23. Lockridge argued that V.S.I. exhibited behavior, i.e. her elopement, that might harm other students. Tr. II, p. 213, line 24–p. 214, line 5.1/ Lockridge testified, without specific detail, that V.S.I. "could have hit, kicked, maybe spit on somebody or something." Tr. II, p. 214, lines 7-10. Lockridge testified that he was holding V.S.I.'s wrists when he was sitting on them. Tr. II, p. 215, lines 4-6. Despite his training, Lockridge testified that he did not understand that it was an inappropriate method of discipline for him to be sitting on V.S.I.'s hands. Tr. II, p. 215, lines 11-13. Lockridge testified that he did not intentionally violate any School Board policies or intend to violate any directives that he was given. Tr. II, p. 220, line 24–p. 221, line 3. This appeared, in part, to be the crux of his defense to the charges brought. Lockridge testified that when the incident was happening at Northport K-8 School with V.S.I., he reverted to and used his "military restraint training," instead of his School Board restraint training. Tr. II, p. 222, lines 15-17. Lockridge testified that he did not bring up this issue of his military training "kicking in," as he put it, concerning the incident involving V.S.I. However, he discussed it before with a behavior analyst concerning another student. Tr. II, p. 230, lines 19-21, and p. 231, lines 18-20. Lockridge related an incident that had occurred in May 2015. Apparently, a student tried to assault him while he was walking back to the ESE office. His old military restraint training came into play, and he ended up having to put the student on the ground. He physically put the student on the ground. Tr. II, p. 232, lines 12-16, and p. 233, lines 4-11. In a candid admission, Lockridge testified that he does not believe that "at this moment" he could work with disabled students at the school district as a behavior technician. Pet. Exh. 12; Tr. II, p. 236, lines 21-24. Describing his military restraint training (that he sometimes reverts to), Lockridge testified that because he was going to be working with prison detainees, "They taught us various techniques to keep yourself safe and try not to do harm to the prisoners either." Tr. II, p. 237, lines 17-22. Lockridge testified that, unlike CPI training, military restraint training is not non-violent training. It could be violent. Because, as he put it, you are working with prison detainees. So, Lockridge could not say it was non-violent. Tr. II, p. 237, line 23–p. 238, line 3. When asked if it is foreseeable that he could become violent with a student, Lockridge answered, "I don't know. . . . I understand what I did was wrong. I don't know how I could have done some things differently. I don't know." Tr. II, p. 238, lines 4-8. When asked if he can say with any degree of certainty that he may not pose a danger to students, Lockridge testified that, "if I'm put in a stressful situation with a very aggressive student or that I perceive to be aggressive, I do what I think is best for my safety at the time. Or the student's safety too." Tr. II, p. 238, lines 14-24. Lockridge testified, frankly, that for him, it is sometimes more of an automatic response and that he cannot really control this military restraint training that kicks in. Tr. II, p. 238. line 25–p. 239, line 3. Testimony of Virginia Snyder Virginia Snyder works for the Department of Children and Families as a child protective investigator. Tr. I, p. 153, lines 6-8. She prepared a report of institutional abuse, an investigative summary. Pet. Exh. 2.; Tr. I, p. 153, lines 13-25. Her investigation and report involved Lockridge sitting on V.S.I.'s hands to restrain her in the classroom at Northport K-8 School. Tr. I, p. 154, lines 21-25. She went to the school, talked with administration, talked to witnesses, and talked to children involved on the report. Tr. I, p. 154, lines 3-9. Ms. Snyder made verified findings for "threatened harm of physical injury." Tr. I, p. 154, lines 11-16. Ms. Snyder concluded that Lockridge had in fact sat on the child's hand. Tr. I, p. 155, lines 2-4. She also made a finding that the school district's policies and practices were appropriate. Tr. I, p. 155, lines 15-17. "Threatened harm" means the possibility that the person's actions can cause an injury to the child. Tr. I, p. 155, line 23–p. 156, line 1. Ms. Snyder testified that the Department of Children and Families felt that a pattern was appearing due to a prior investigation that was closed without a substantiated finding. When the Department of Children and Families conducted an institutional staffing, the Department of Children and Families was concerned that there was a pattern starting. Tr. I, p. 157, lines 4-8. Specifically, Ms. Snyder "looked at how Lockridge restrained the child, was it appropriate or was it inappropriate . . . . And that is where we established that there was a type of behavior, a pattern starting." Tr. I, p. 157, line 20–p. 158, line 2. "We (DCF) don't make the recommendation. We make the report so that those involved can have a copy of an official report from the Department of Children and Families. We put the findings in there so that whoever administrative-wise is taking a look at it can make a decision, like the School Board, as to what penalty that staff member may face." Tr. I, p. 159, lines 17-24. Based on Department of Children and Families legislation, she felt that the two incidents are "a pattern" and are not reflective of just isolated events. Tr. I, p. 162, lines 1-5, 16-17. Testimony of William Tomlinson Bill Tomlinson is the executive director for Student Services and Exceptional Student Education. Tr. I, p.112, lines 4-5. He has worked for the School Board a total of 29 years. Tr. I, p. 112, lines 13-14. Tomlinson testified regarding whether behavior technicians are trained in any sort of restraint or CPI. He testified that the school district has two separate models that are used in the district. The first is non-violent crisis prevention intervention, better known as CPI. The second model the district uses, for more severe children that may be in a special day school, is professional crisis management. Non- violent CPI is a nationally recognized model that deals primarily with strategies to verbally de-escalate behavior. It employs different levels of strategies with students before getting into physical management of any type of behavior. The physical management piece is a part or a component of the training, but it is really the last resort. In his opinion, "that (i.e., physical management) should be last." Tr. I, p. 114, lines 4-21. It is meant to be a process in which the teacher tries to curtail the behavior of the student by working with them to help them self-regulate so that the student can take ownership of his/her behavior and get themselves under control without the teacher having to do any type of physical management. Tr. I, p. 115, lines 8-16. "Many teachers, many principals have all been trained in this method so that they understand how to de-escalate behavior verbally, how to work with students to offer choices that you can do, versus doing this." Tr. I, p. 115, line 24. Tomlinson noted that "restraint" is a term used "whenever we physically manage a person . . . the way we define it is if you have to immobilize someone's limbs and they're not free, they no longer have freedom of movement, that would be considered a restraint." Tr. I, p. 116, lines 5-10. In his opinion, restraint of anyone is the last resort. Tr. I, p. 117, line 7. He added that "if you see that the behavior is something that you can verbally begin to de-escalate, have conversation with the child, the child is able to understand rationally what it is that you're asking of them, then you're going to employ all of these strategies before you ever get to that last resort." Tr. I, p. 118, lines 4-9. Any time an employee in the district has involvement with a child and there is a report of suspected institutional abuse, Tomlinson is notified. Mr. Bonner (Human Resources) is notified, and he, law enforcement, and the Department of Children and Families all work through the process together. Tr. I, p. 122, lines 16-23. Lockridge was removed and placed in the ESE department, working in the reception area where there was no access to children while the investigation was ongoing. Tr. I, p. 123, lines 6-11. Freedom of movement is good (the child likes the freedom of running off and playing on a playground or during PE) as long as they are safe. Tr. I, p. 126, lines 19-23. "If we end up bruising the child in anything that means to us that we have applied the wrong process or the wrong procedure." Tr. I, p. 127, lines 4-8.2/ "If the child starts fighting back in the process where there is restraint used, they're trying to get out of that, you need to let them go. You may have to resume the restraint once it is safe to do so." Tr. I, p. 127, lines 9-11. "If the child isn't hurting anybody . . . from crawling under (the desk) or crawling out of their desk . . . then it would be appropriate to not bring attention or get attention from someone. Instead, praise another child for acting appropriately or remaining in their chair. This is an effective approach to use." Tr. I, p. 128, lines 3-25. It is "absolutely not appropriate," in terms of restraint, to sit on a child's hand. Tr. I, p. 129, lines 1-3. It is not appropriate to take a disabled child by the wrist to try to get them to go where you want them to. The first appropriate response is "take my hand and let's walk." Tr. I, p. 131, lines 17–p. 132, line 3. Tomlinson testified, "I may take a person simply by the elbow and follow me. . . . That . . . is after you have exhausted the verbal demand for this. Because it's unnatural to have to do that, to lead people or to pull them where you want them to go." Tr. I, p. 132, lines 14-24. The January 13, 2012, mid-year review for Lockridge shows improvement needed in job knowledge and skills and quality of work. Resp. Exh. 5; Tr. I, p. 143 line 25–p. 144, line 2. Listed on Lockridge's mid-year evaluation at the time was that he needed improvement in job knowledge and skills and the quality of work. The narrative indicated that he was required to work with the behavior analyst at Sam Gaines School to review the appropriate protocols to follow to gain compliance from the students with whom he is working. Lockridge was required to attend training offered behavior technicians on early release and professional development days. Tr. I, p. 149, lines 6-14; Pet. Exh. 19. Lockridge was directed to increase his knowledge of behavioral tools to verbally de-escalate a situation, as well as to remain objective instead of entering into a verbal disagreement with students. It means not getting into a verbal power struggle with the child. "Be calm, relaxed in the tone and tenor of your voice and, whenever you work with the individual, don't let that person bring you into the type of behavior that they're exhibiting." Tr. I, p. 149, line 4–p. 150, line 4; Pet. Exh. 19. Finally, Tomlinson testified that it would not be appropriate for a behavior technician to drive their fingernail into the palm of any child. Tr. I, p. 150 lines 5-9.
Recommendation Based on the foregoing proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board terminating Respondent from his position as an ESE behavior technician. DONE AND ENTERED this 4th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of April, 2016.
The Issue Whether Respondent, a school teacher employed by Petitioner pursuant to a professional services contract, committed the offenses alleged by the Petitioner in its Petition for Dismissal and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent was first employed by Petitioner in 1992. For the school year 1995-96, Respondent was assigned as a special education teacher at John I. Leonard High School, one of the public schools in Palm Beach County. In addition to his teaching duties, Respondent was the coach of the Junior Varsity baseball team. At all times pertinent to this proceeding Respondent was a member of the CTA, the union that represents instructional staff in the Palm Beach County School District. Effective January 18, 1995, the Petitioner adopted School Board Policy 3.26 as a rule. This rule was drafted by James Kelly, an attorney who is employed by Petitioner as the chief of its police force. It was the intent of Chief Kelly to draft a "zero tolerance" rule, prohibiting employees and others from bringing firearms on school property. It was the intent of Chief Kelly in drafting the rule that the employment of any employee who violated that prohibition would be suspended until that employment could be terminated. Rule 3.26 provides, in pertinent part, as follows: It is the intent of this Policy to clearly state that possession of firearms will not be tolerated on School District property. Definitions: "Firearm" means any weapon (including a starter gun or antique firearm) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any destructive device; or any machine gun.1 "Employee" means any person hired by the School Board after completing the personnel procedures required by the School Board. "Independent Contractor" means any person or company other than a School District employee, who provides goods and/or services to the School District and enters into a contracted agreement with the School Board. "Visitor" means any business or personal invitee including, but not limited to, parents, volunteers, family members of School District employees or friends of School District Employees. Any School District employee found to have brought a firearm on School District property shall be subject to suspension and dismissal in accordance with the procedures set forth in School Board Policy 3.27.2 All Contract Agreements with Independent Contractors shall provide that, if any employee of an Independent Contractor or Sub-Contractor is found to have brought a firearm on School District property, said employee will be terminated from the School Board project by the Independent Contractor or the Sub-Contractor. If the Sub-Contractor fails to terminate the employee, the Sub- Contractor's Agreement with the Independent Contractor for the School Board project shall be terminated. If the Independent contractor fails to terminate said employee or fails to terminate the Agreement with the Sub- Contractor who fails to terminate said employee, the Independent Contractor's Agreement with the School Board shall be terminated. Except to the extent allowed by law, any visitor found to have brought a firearm on School District property shall be notified that all subsequent visits to School District property will be by an appointment only, and that visits without prior appointment may result in a criminal action for trespass. This Policy does not apply to any Law Enforcement Officer . . . Article II, Section M of the collective bargaining agreement between the CTA and the School Board, entitled "Discipline of Employees (Progressive Discipline)," provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee maybe reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which lead to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section , including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) include either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. At the times pertinent to this proceeding, Respondent had a concealed weapon's permit issued by the Florida Department of State's Division of Licensing. Respondent received instructions and materials when he obtained his concealed weapons permit in Florida that clearly advised him that a concealed weapons permit does not authorize the possession of a concealed weapon on school premises. Respondent knew or should have known that his concealed weapon's permit did not authorize him to carry a firearm on school property. At all times after March 29, 1996, Respondent knew or should have known that school employees were prohibited from bringing firearms on school property. Prior to May 1, 1996, Respondent knew or should have known of the School Board's Rule 3.26.3 Respondent knew or should have known that bringing a firearm on school property would violate this rule. March 29, 1996, was a teacher planning day. On that day Respondent brought on school property a firearm that he had recently purchased so he could show the firearm to Officer Charles C. Edwards, a member of the School Board's police force. Officer Edwards told Respondent he could not have a firearm on school property. As of May 1, 1996, the junior varsity baseball season was over for John I. Leonard High School, but the varsity team was in the post-season playoffs. On May 1, 1996, the varsity team was involved in a game that would eliminate the loser from the playoffs. The game was scheduled to begin at 7:00 p.m. on the campus of John I. Leonard. At the request of the varsity baseball coach, Respondent agreed to scout a potential playoff opponent that was playing a game in Plantation, Florida, at 7:00 p.m. When Respondent left his house on the late afternoon of May 1, 1996, he intended to make a bank deposit prior to going to John I. Leonard High School to pick up the forms that he was to fill out as he scouted the potential opponent. The bank deposit was for the Men's Baseball Association of Palm Beach County and consisted of more than $1,000 in cash and checks. It was Respondent's practice to carry a firearm on his person when he had a large sum of money to be deposited. Consistent with that practice, Respondent took his firearm when he left his house on May 1, 1996, and drove to his bank's drive- in window. At all times on May 1, 1996, pertinent to this proceeding, Respondent had his firearm in a holster. When Respondent first entered his vehicle, he placed the holstered firearm in a fanny pack and placed the fanny pack containing the holstered firearm under the seat of his vehicle. Consistent with his practice, when Respondent got to the line for the drive-in window, he removed the gun from the pouch and placed the holstered firearm in his lap. Because he was running late and the line was moving slowly, Respondent pulled out of the line of cars without making his deposit and headed for John I. Leonard High School to pick up the forms he needed. He clipped the holstered firearm to his belt between his body and his pants at the rear of his right hip. His shirt tail covered the firearm. Respondent also had his cellular phone and beeper clipped to his belt. The cash was in the right front pocket of his pants. Respondent arrived at John I. Leonard High School a few minutes before 6:00 p.m. on May 1, 1996. He parked his vehicle on school grounds in the parking lot near the school gymnasium and approached the gate to the ball field area. Respondent intended to go to the office of the varsity baseball coach to get the forms he needed to scout the game in Plantation. The coach's office was located inside the ball field area above the concession stand. Tickets to the game were sold at a table that was set up at the gate. As Respondent approached the gate, Gary Zaniewski, Jack McLaughlin, and Scott Siegel were present at the ticket table. Mr. Zaniewski was, as of May 1, 1996, the father of a varsity baseball player and served as the president of the John I. Leonard High School Baseball Booster Club. Mr. McLaughlin and Mr. Siegel were school board employees. As Respondent passed by the table, Mr. Zaniewski noticed that Respondent was wearing a firearm and reminded him of that fact. Mr. Zaniewski told Respondent that he did not think it was appropriate for him to have a firearm on school property. Respondent immediately turned around, went back to his vehicle, placed the holstered firearm in the pouch under the seat, and locked the car. He thereafter went to the coach's office, got the forms he needed, and went to Plantation to scout the game. The firearm was in Respondent's vehicle during the few minutes it took him to get the forms from the coach's office. During the time Respondent was on school grounds, he did not remove the firearm from the holster, point it at anyone, shoot anyone or anything, threaten or harm anyone, or engage in any kind of confrontation. While there were members of the baseball team at the field warming up, those players were not in close proximity to Respondent. For the calendar year 1995, there were 169 reported thefts from motor vehicles located on School Board property and 23 motor vehicles stolen from School Board property. The presence of a firearm locked in a vehicle on school property presents a real and immediate danger that Rule 3.26 was enacted to prevent. Respondent testified that he was in a hurry on May 1, 1996, and simply forgot that he had the firearm on his person when he approached the gate to the baseball field. Although there was testimony that a person would not forget he was carrying such a weapon, the testimony of the Respondent is found to be credible. Consequently, it is found that he forgot he had the firearm on his person when he first exited his vehicle on school property on May 1, 1996. There can be little doubt, however, that Respondent was aware that he had a firearm with him when he drove on school property. The Respondent's holster did not have any device to impede unauthorized or inadvertent removal of the firearm. In contrast, the type holsters used by Petitioner's police force requires three separate actions in order for the gun to be removed from the holster. Respondent's careless possession of a firearm that was clipped to his belt in an unsafe holster presented a real and immediate danger that Rule 3.26 was enacted to prevent. Rule 3.26 is a reasonable exercise of the School Board's authority. Despite the events of May 1, 1996, Respondent was given a professional services contract by the School Board for the year 1996-97. On the recommendation of the Superintendent of Schools, the School Board suspended Respondent's employment effective September 19, 1996, and voted to institute these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that finds that Respondent violated the provisions of Rule 3.26 as alleged by Petitioner and suspends his employment for a period of one year. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.
