Findings Of Fact During the 1982-1983 school year, Jorge Valdez is a seventh grade student. He was assigned to Lake Stevens Junior High School for this school year. In October 1982, pursuant to a request from his physical education teacher, Respondent was counseled and issued strokes for being repeatedly late and for refusing to "dress out" for class. On two occasions in November 1982, pursuant to requests from his art teacher, Respondent was counseled and issued strokes for being disruptive in art class by walking around the room during class and refusing to participate in class activities. In December 1982, Respondent was suspended from school for three days as a result of an incident at the bus stop. When Respondent returned to school after his suspension, he was wearing a linked chain approximately three feet long hidden under his shirt. On the third day, he was caught using the chain to threaten another student. Respondent was given a ten-day suspension, and a conference was held with his mother. The Student Code of Conduct provides for expulsion of any student possessing a concealed weapon. As a result of his conference with Grizel Valdez, Jorge's principal agreed he would request a waiver of expulsion with an alternative placement instead. As of November 5, 1982, Respondent's grades in his six classes at Lake Stevens Junior High School were one C, one D and four Fs. In conduct, his grades were one A, one C and four Fs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Jorge Valdez to Petitioner's opportunity school program at Jan Mann Opportunity School North. DONE and RECOMMENDED this 31st day of May, 1983, Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Grizel Valdez 4901 NW 173rd Street Carol City, Florida 33055 Phyllis O. Douglas, Esquire Assistant Board Attorney Lindsey Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue The issues in this case are whether Respondent, Peggy Addison ("Addison"), failed to correct certain performance deficiencies identified by Petitioner, Collier County School Board (the "School Board"); and whether such failure constitutes just cause for terminating Addison's professional service contract.
Findings Of Fact The School Board is the governing body of the Collier County Public School system. The School Board is responsible for hiring, monitoring, supervising and firing all employees of the school system, including all teachers. Addison has been a school teacher since her graduation from college in 1969, with the exception of a few years taken off to raise her family. She has been a teacher within the Collier County School System for 25 years. For 15 years, and for all times relevant to this matter, Addison was a teacher at the School. Addison taught various grades at the School, but primarily first and second grades. She taught first grade at the School for two years prior to the 2009-2010 school year. During the summer of 2008, the School was assigned a new principal, Nicole Stocking. The assignment was Stocking's first as the principal of a school. Previously, Stocking had experience as a school teacher and as an assistant principal. At the time of her appointment, the School had not been making progress for a number of years and was admittedly a "problem" school, meeting only about 60 percent of its goals. In education parlance, the school was not meeting its Annual Yearly Progress (AYP) goals. Stocking was directed by the superintendent of schools to take all measures necessary to make improvements at the School. Stocking immediately took aggressive actions to ensure improvement at the School. She let all staff and administrators know that there would be a concerted focus placed on reading programs. She advised all teachers that she expected drastic improvements at the School and expected each teacher to work hard toward that end. Stocking established a leadership team made up of her, Vice-Principal Edwards, Reading Coach Bryant, and Reading Coach/Learning Team Coordinator Campbell. The leadership team would conduct weekly walk-throughs of all classrooms and then meet to discuss any problems they had identified. The intent of the walk-throughs was to identify all problem areas needing attention in order to meet the AYP goals for that school year.1 Stocking was described as "all business" and "not a people person" by her subordinates. It is obvious that Stocking took a fairly hard-line approach to her supervisory responsibilities. At one point, ten classroom teachers filed a group grievance against Stocking due to the harshness of her management style. The grievance was deemed unfounded, but the fact that it was filed is some indication of how teachers perceived their new principal. Some of the teachers who joined in the grievance testified at final hearing, and it is clear there was a broad view of Stocking as a difficult person to work for. That is not to say that Stocking did anything improper, only that her actions could be perceived more harshly by some than by others. The 2008-2009 school year started with some significant changes. For example: A new literacy program (MacMillan) with a text called "Treasures" was implemented district-wide; focus was placed on "Guided Reading"--a process whereby students were divided into small groups where their reading skills and progress could be monitored closely; and teachers were told to expect "walk-throughs" by the principal and other administrators. It was clear that the new administration would be pressing everyone to make vast improvements at the School. Improvement in student reading was expected to be the catalyst for overall school improvements for the 2008-2009 school year. Specifically, the School was going to be focused on the Guided Reading process. Teachers would divide students into groups according to their needs, and then meet with each of the groups independently while other students busied themselves with other tasks. During the groups, the teacher would evaluate one student individually by doing a "running record," that is, a short checklist to see how many words the student read correctly from an assigned text. By doing running records for one student in each group and four groups per day, the teacher could assess every child every week. The running records could then be used to help prepare lesson plans for the upcoming weeks. The evidence at final hearing was somewhat contradictory as to how long it took to do a running record, but the consensus seemed to be that it takes about two to three minutes per student.2 During the 2008-2009 school year, Addison was a first-grade teacher. Addison had taught other grades during her career, but preferred and enjoyed first and second grades the most. She had developed a feel for first-grade curriculum and felt most comfortable in that setting. The first-grade team that year consisted of Arcand, the team leader; Laing; Chamness; Tyler; and Addison. Each of the first-grade classes had a mix of students, including some English language learners ("ELL"), i.e., those for whom English was a second language, and exceptional student education ("ESE") students, those with learning difficulties. Addison's class had some ELL and ESE students, but the overall makeup was not significantly different from the other first-grade classes. Almost immediately upon commencement of the 2008-2009 school year, Stocking began to perceive shortcomings in Addison's teaching skills. Some of the perceptions were based on Stocking's personal observation of Addison's classroom; some were based on reports from her leadership team. Stocking was concerned that Addison's students were not sufficiently engaged in some classroom activities. She felt that Addison was not appropriately implementing the Guided Reading program, and she had some concerns about safety issues for Addison's children. Stocking began to correspond with the first-grade team leader (Arcand) concerning Addison's teaching abilities. Arcand provided Stocking with somewhat negative information gleaned from her own observation of Addison. At the same time, first-grade team members Laing and Creighton expressed positive feelings about Addison's abilities. Stocking developed the following specific concerns about Addison's teaching skills: Classroom management--All of the children were not actively engaged in the classroom work at times; some children seemed not to know what their assignment was about. Group reading--Not all children were reading at their appropriate level, i.e., Addison had rated them at too high or low a level. One child appeared to Stocking to be struggling despite assurance from Addison that the child could read well. Some children were not being properly supervised or monitored during the transition from lunch back to the classroom. Addison had some difficulties with the new MacMillan reading program, but she continued to employ it as directed. Some of her peers attempted to guide Addison and provide instruction, but Addison continued to struggle. To her credit, as expressed by Stocking, Addison sought help from her co-workers to master the program. Despite Addison's best efforts, Stocking did not feel that Addison's students were being properly rated and assessed by way of running records. Addison, on the other hand, felt comfortable with her teaching. There were instances where Addison appeared not to be properly monitoring her students on their way from the lunch room back to the classroom. However, the first graders all transitioned from lunch to class at about the same time, and all first-grade teachers were involved in the transfer process. While it may be true that another teacher saw one of Addison's students misbehaving or going somewhere they were not supposed to go during this time, that fact does not necessarily indicate a failing on Addison's part. She may have been helping or guiding another teacher's student at the same time. There is no evidence, however, that Addison ignored her responsibilities, vis-à-vis, her students. As for students not being fully engaged during instruction, that determination cannot be made upon the evidence presented. While there were apparently children not actively engaged in the lesson being presented while Stocking or someone observed the classroom, Addison admits that first graders are not always on task. She provided several reasons that some of the children might have been unfocused on any given day. The fact that some child may have been disengaged on a particular day is not sufficient to make a finding that such behavior was rampant or a problem. During the second half of the 2008-2009 school year, Addison received numerous written disciplinary-type reports from Stocking, including: an "Observation" memorandum dated January 21, 2009, wherein Assistant Principal Edwards criticized Addison's teaching; a "Conference Summary" memorandum dated January 26, 2009, concerning Addison's interaction with a student who was out of control; a memorandum dated January 28, 2009, moving Addison to "Developing" status in five Educator Accomplished Practices (EAPs); a Warning of Unsatisfactory Performance memorandum dated February 5, 2009, in which Stocking chastised Addison for turning in lesson plans a day later than they were due; a memorandum warning about being placed on Developing status dated March 5, 2009; a letter of reprimand dated March 12, 2009, relating to Addison being absent without proper notification; another letter of reprimand one week later saying Addison failed to turn in lesson plans after an illness; another letter of reprimand dated April 3, 2009, addressing Addison's Guided Reading groups; a memorandum concerning an adverse classroom incident dated April 16, 2009; a letter of reprimand dated May 1, 2009, regarding gifts of water pistols Addison had given to two students at the end of the year; and a letter of discipline, with a one-day suspension, dated May 6, 2009. Addison had never received a letter of discipline prior to the 2008-2009 school year, but in that year she received them almost weekly during the second part of the school year. At the end of the 2008-2009 school year, Addison received an annual evaluation in accordance with School Board policies. The evaluation addressed the 12 areas of performance which form the basis of each teacher's assessment. Addison was placed in the "Developing" category for four of those areas. The Developing category indicates that the teacher has not sufficiently mastered the performance required in that particular area of teaching. By School Board policy, a teacher placed in the Developing category for three or more areas of performance is automatically placed on Strand III status. Addison was placed on Strand III commencing with the start of the 2009-2010 school year.3 Strand III is a probationary category under the School Board's Collier Teacher Assessment System ("CTAS") and is applicable to teachers with a Professional Service Contract. Strand III is covered under Article 5 of the Collective Bargaining Agreement between the School Board and Collier County Education Association. A teacher placed on Strand III has 90 days to demonstrate improvement in the Developing areas of performance in order to return to Strand II. Prior to being placed on Strand III for the 2009-2010 school year, Addison had never been placed on Strand III before. Her past five annual evaluations were as follows: 2007-2008--All twelve areas were at Professional. The evaluation was done by Ms. Grieco, whose position was not disclosed in the evidence. 2006-2007--Eleven areas were at Professional; one was at Developing. The evaluation was done by Ms. Psenicka, an assistant principal. 2005-2006--Ten areas were at Professional; two were at Developing. The evaluation was done by Assistant Principal Manley. 2004-2005--Seven of 12 areas were deemed Professional; five were deemed Accomplished. Principal Ferguson did the evaluation. 2003-2004--Seven of 12 areas were deemed Professional (the highest level of proficiency); five were deemed Accomplished (meaning that the teacher was not deficient in that area). The evaluation was done by Principal Ferguson. The Strand III process is quite involved. It requires the creation of a team of individuals whose purpose is to help guide the teacher toward improvement in the deficient areas. Stocking actually put three teachers on Strand III at the same time that Addison was designated, although she had never placed a teacher on Strand III before and was not experienced in administering the program. Knowing that the process was very time-consuming, Stocking decided to transfer the other two teachers to other schools, rather than try to run three Strand III processes at once. Each of the other teachers was removed from Strand III once they reached their new schools. Neither of those teachers had received as many disciplinary notices from Stocking as Addison had received, but Stocking testified that she saw the most potential for improvement in Addison versus the other two. There is some incongruity in that statement, but, nonetheless, it is a fact. The Strand III team for Addison was made up of a school administrator (Stocking), an administrative support person (Terry), Addison, and a person selected by Addison (Creighton). This team then developed a Professional Assistance Plan (the "Plan") which set forth the areas of performance that needed to be addressed and general goals to be accomplished. Addison's Plan contained four areas of concern corresponding with the four Developing areas in her 2008-2009 annual evaluation. However, six additional areas were added to the Plan, because Stocking said they "needed some attention." No authority for adding additional areas was provided by Stocking other than that the human resources department told her it was allowable. As a result of the added areas of concern, the Plan contained ten EAPs to be addressed by Addison and the team. Within each EAP, there were a number of "Indicators" which more specifically addressed a component within the general EAP. By way of example, the first EAP was "Assessment" with nine Indicators such as: diagnose the entry level and skill of students using diagnostic tests, observations, and student records; assess the instructional level of exceptional students; and, correctly administer required grade level and district assessments in identified assessment windows. The EAPs would be deemed to have been "observed" if Addison made significant progress on the individual Indicators. While 117 Indicators are a lot, many of them overlap and addressing one Indicator may also address several others at the same time. Nonetheless, when written in a Plan, that many EAPs and Indicators could appear quite daunting. At about the same time Addison was notified that she was being placed on Strand III, Stocking decided to move Addison from teaching first grade to a fifth-grade class. Addison had never taught fifth grade, although her certification was for grades one through five. Addison was opposed to the move, because she was more comfortable with first grade, and during the Strand process, she knew that more would be expected of her. She did not feel that a move to fifth grade would be the best scenario for dealing with Strand III. Stocking denied her request to remain in first grade and also denied Addison's request to be transferred to another school. School-to-school transfers are allowed whenever there are openings available at the target school, but it appears no openings were available. Once the new school year commenced, Addison, now in a new teaching environment with fifth grade, had 90 calendar days under the Plan to show improvement in the areas of concern. The Plan is dated August 24, 2009, and contains the following time line: Commence on August 24, 2009 (Date of formal notice to Addison); September 4, 2009 (Day 10)--Assign assistance team; September 14, 2009 (Day 15)--Hold professional assistance plan meeting; September 21, 2009 (Day 22)--Write professional assistance plan; September 22 through November 24, 2009--Plan, implement and collect data; November 24, 2009 (Day 92)--Assessment; December 16, 2009--Written recommendation from lead administrator to superintendent; January 15, 2010--Written recommendation from superintendent to Addison; If termination was recommended; then February 2, 2010--Written request for hearing. The amount of time from when the notice was given to Addison until the assessment was done was 92 calendar days, which is consistent with the times set forth by CTAS. While the schedule complied with CTAS guidelines, Addison obviously did not have 90 days to address the ten EAPs and 117 indicators. Nonetheless, the Strand III process was correctly implemented from a timeframe perspective. In order to effectuate the Plan, the team was to meet at least weekly to review Addison's progress, re-focus her efforts, and establish goals for the coming week. The weekly meetings were generally held at 7:40 a.m., 30 minutes prior to the start of class on Monday mornings. The meetings would sometime run a little long, and Addison would arrive late to her class. In such instances, she was expected to use her teaching skills to catch up with the timed lesson plans. All teachers were expected to teach in accordance with their lesson plans so that at any given time, anyone coming into their classroom would know exactly what lesson was being taught. Strict compliance with the lesson plan schedule was expected from all teachers. There were documented instances of Addison not teaching lessons in strict accordance with the lesson plan schedule. However, there were extenuating circumstances involved. For example, when the weekly team meeting lasted too long, it would adversely affect Addison's teaching schedule. At other times, Addison would teach one course to another teacher's students and vice-versa. As a result, the teachers may not be teaching in accordance with the lesson plan schedule. There was insufficient evidence to find that Addison was in serious violation of the lesson plan schedule requirements. The weekly team meetings were codified in minutes taken by Vice-Principal Monoki. Sometimes two people took minutes of the meetings in an effort to assure correctness. The minutes were ostensibly meant to be a general overview of what the meeting was about, but, in actuality, they were quite detailed concerning some issues. Addison often took exception to the minutes as printed, and would attempt to submit amendments or changes. Those amendments were generally not accepted by the team. At one point Addison requested the right to tape record the meetings, but that request was denied. The form of the minutes was altered in October 2009, into a sort of chart, rather than regular minute format. The purpose of that change was to allow for better comparison between prior weeks, the current week and the upcoming week. The minutes were provided to each team member at the beginning of the subsequent meeting. All of the team members, except for Addison, would sign the minutes to confirm that they were correct and accurate. Addison did not ever agree that the minutes were correct and accurate. Addison's designated representative on the team, Creighton, did sign the minutes each week. During the approximately 45 school days that Addison was assessed under the Plan, she made progress in some areas, but according to the team, her progress was followed by further shortcomings. However, measurement of Addison's progress was extremely subjective. For example, Addison was found to be deficient in the use of "targets" for her class. Targets are written focus points placed on the bulletin board so that students can remember what topics are currently being taught. Addison was chastised for having inappropriate targets. However, when compared to other fifth-grade teachers' targets, Addison's were virtually identical. For example, on September 4, 2009, Addison took pictures of the targets posted in her classroom and two other classrooms. The targets are compared below: Addison Classroom 2 Classroom 3 Reading: Tall tales, plot development (setting influences plot), reading words with long vowels and many syllables Tall tales, plot development, setting, subject & predicate, long vowel sounds, dialect Compound words, setting-> where-> when, words with long vowels, chronological order, building fluency Science: Make observations, explain how science tools are used, describe the steps of the scientific method . . . Tools scientist use, scientific method, mass=amount of matter in an object, Inquiry=observe, measure, gather and record data . . . Tell what causes weather . . . make observations, take measurements, explain how science tools are used, steps of the scientific method. . . Language Arts: Six traits: Idea, Compound subjects, simple and compound voice, organization, compound predicates, subjects and word choice, commas in a series predicates, six sentence fluency traits of writing: idea, voice, organization, word choice, sentence fluency, conventions, Commas used in a series Math: place value Place value through Sums and differences through millions, billions, compare of whole numbers and compare and order and order numbers, decimals, strategies decimals, place place value for solving word value patterns, sums patterns, rounding, problems, place and differences of estimating, adding value patterns, whole number, adding and subtracting and subtracting whole numbers and problem solving decimals decimals There appears to be only minimal differences between the three teachers' targets set forth above. There was no competent testimony at final hearing as to why Addison's wording of her targets was somehow inferior to that of the other teachers. As another example of subjective measuring, Addison was cited for allowing some children to be disengaged while she was teaching other children. At least one outside observer noted that some children were not on task and others were seen leaving the classroom. But Addison explained that children had the right (and need) to leave the class to go the reading center or restroom; other children were supposed to be busy individually at an assigned center, etc. That is, in a fifth-grade classroom, all children were not always doing the same thing at the same time. During the time period that Addison was undergoing the Strand III process, she received a number of disciplinary notices. On September 1, 2009, Stocking sent Addison a memorandum entitled "Conference Summary," which was a criticism of Addison's teaching during a class on August 31, 2009 (one week into the new school year). This memorandum was followed by a number of other letters and memoranda. The first such letter was on September 9, 2009, just 16 days into the Strand III process. The "Warning of Unsatisfactory Performance" memorandum issued by Stocking on that date said Addison had failed to post targets and had been teaching outside the stated lesson plans. Thus, rather than assisting Addison, under the Plan, with this perceived shortcoming, a disciplinary action was taken. Six days later, on September 15, 2009, a letter of reprimand was issued by Stocking. Again, Addison was accused of not posting appropriate targets on her board for use by her students. Then on October 30, 2009, another letter of reprimand was issued, this time for not conducting daily running records for her students. Addison was doing the running records, but the records sometimes failed to include a statement by Addison as to the child's reading status. This was a shortcoming that could have been addressed as part of the Plan and discussed in team meetings. Instead, it was handled as a disciplinary matter. The letter also addressed a concern that one student was missing a number of grades in the grade book. Addison suggests there are reasons for that discrepancy, i.e., the student only recently transferred in to her class. These disciplinary letters were followed on December 3, 2009, with a memorandum from Stocking addressed to Addison (although it refers to Addison in the third person) indicating that Addison had not met "district expectations." No one explained at final hearing as to the necessity of on-going disciplinary reports while Strand III was progressing. Addison was meeting weekly with Stocking and other team members to address all issues, including those addressed in the separate disciplinary charges. One of the discipline letters initially recommended a three-day suspension for Addison. A suspension would be totally inappropriate for someone under Strand III. The recommendation was changed once this fact was brought to Stocking's attention by the union representative. Interspersed with these disciplinary actions were a fairly constant exchange of emails between Addison and Stocking, Monoki, Terry and others. The emails contained concerns about Addison's teaching and responses from Addison. It is clear from the correspondence between Addison and others that there was complete disagreement between them as to Addison's teaching skills. The team meetings to address the Plan attempted to cover some of the 117 EAPs each week. Commencing with the October 5, 2009, meeting, a chart was utilized to compare the team's focus from the previous meeting to the focus for the coming week. The chart also included feedback from persons who had personally observed Addison the prior week and a statement of the specific support to be provided in weeks to come. During the first several weeks, the "focus from prior week" section of the chart was fairly brief, while the "feedback from formal observations" section was quite long. During the last few team meetings, this trend reversed. It appears that more feedback and support was being provided in the earliest stages of the Strand III process than in the later stages. According to the findings set forth in the team meeting minutes, Addison made progress in some areas and struggled in others. For the most part, the minutes reflected a "Not Achieved" status for many of the EAPs which were addressed. Addison made some attempts to amend the minutes of team meetings, but inasmuch as the minutes were not meant to be verbatim transcripts, her requests were generally denied. It is telling that Addison's selection to the team, Creighton, signed off on each of the minutes despite Addison's refusal to do so. However, Creighton maintains that Addison was doing a fine job teaching, notwithstanding comments in the minutes. Under the Plan, Addison was supposed to receive guidance, training, and support by administrative and other designated professionals. There is evidence in the record that Addison's class was visited on a number of occasions by other teachers and trainers. However, the preponderance of the evidence is that the classroom visits more often resulted in negative reactions to Addison's teaching than assistance and guidance. The amount of actual assistance received by Addison during the Strand III process is not consistent with the ideals set forth in the Plan. Nor were there any observations made by administrative personnel from the School or from the district office, although the Plan called for such observations. Under the Plan, Addison was supposed to be provided additional planning periods to work on the issues set forth in the Plan. The additional planning periods were never provided, but Petitioner could not explain why. Based upon the size and breadth of the Plan, it would seem that some extra planning time would have been absolutely essential. It is clear Addison and Stocking did not particularly like each other.4 Their differences could have been based on differences in teaching methods, age, years of experience, or any other factor. Whatever the reason, it is clear from the record that the two individuals viewed the same facts with very different interpretations. It is no wonder the Strand III process was deemed unsuccessful. On December 15, 2009, Stocking sent a recommendation to the superintendent of Collier County Schools that Addison be terminated for failing to make significant improvement in the four original areas of concern. By letter dated January 15, 2010, the superintendent notified Addison that a recommendation would be going to the School Board that Addison's teaching contract be terminated. The decision to terminate Addison's teaching contract was made based on the assessment performed during the Strand III process. Lost in the focus on Addison's abilities or lack thereof was the issue of her students' performance. At the conclusion of the 2008-2009 school year, 17 of Addison's 19 students were credited with having achieved a year's worth of growth. The other two students were deemed unable to achieve a year's worth of growth for reasons outside of Addison's teaching abilities. There were more students in the team leader, Arcand's, class deemed deficient at the end of that year than in Addison's class. Addison did not complete the 2009-2010 school year, so that particular measurement cannot be used to assess her abilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Collier County School Board, finding that although there was ample evidence to support placing Respondent, Peggy Addison, on Strand III, the process was flawed and cannot be used to justify termination of Addison's employment contract. DONE AND ENTERED this 17th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2010.
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under its jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed at the Peace River Center for Personal Development, Inc. (Peace River Center) in Polk County, Florida, as a counselor for abused or chemically-dependent children. This job required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from his employment. Petitioner and Peace River Center were notified on February 3, 1997. As required by law, Peace River Center removed Petitioner from contact with children and assigned him to other duties. On August 31, 1990, Petitioner was charged with vehicular homicide, a felony, to which he pled nolo contendre. Adjudication was withheld. Petitioner served 3 years probation and paid costs of $275.00. The pertinent facts surrounding the accident are: (a) Petitioner was traveling at approximately 75-to-80 miles per hour in a 45 mile-per-hour zone when he struck and killed a pedestrian who was attempting to cross the street; (b) The victim was a married woman in her mid 50's with an adult son; (c) Petitioner had no excuse for the excessive speed; (d) Both Petitioner and his passenger were severely injured; and (e) There were no drugs or alcohol involved. Petitioner received some counseling after the accident; however, he currently is not receiving any counseling. Even though Petitioner testified that his inability to hold a job was related to the accident, there was no indication that Petitioner felt he needed or intended to get counseling in this regard. Petitioner graduated from high school and has completed approximately 30 hours toward his college degree. Petitioner is planning to begin college again and work toward a degree in Management Information Systems. Since the accident, Petitioner has held six different jobs. Presently, Petitioner is working with Peace River Center (see Finding of Fact 3). Before being disqualified, Petitioner appeared to be doing a credible job for Peace River Center. In April 1994 and March 1996, Petitioner was involved in automobile accidents wherein Petitioner was charged with reckless driving. No one was injured in these accidents, and there was only minimal property damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Families enter a Final Order denying Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 19th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1997. COPIES FURNISHED: Scot Adams, pro se Post Office Box 212 Highlands City, Florida 33846 Jack Emory Farley Chief Legal Counsel District 14 4720 Old Highway 37 Lakeland, Florida 33813-2030 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent John H. Hopkins, Jr., has been employed with the Pinellas County school system since 1961. He has taught in elementary, junior high, middle and high schools. In addition to sick leave, a teacher employed with the Pinellas County school system is entitled to the following days of leave without loss of pay: two days per year for emergency or extenuating circumstances and two days per year for personal leave. These days are charged to the sick leave allowance of the teacher. In the 1976-77 school year, respondent was a science teacher at Disston Middle School. When a teacher has unused days which can be charged to sick leave, it is the established practice at Disston for the teacher to notify the assistant principal in advance when he intends to be absent and to complete the paperwork when he returns to duty. If a teacher does not have days accrued which can be charged to sick leave, he must take leave without pay. Leaves of absence without pay must be approved in advance by the county personnel office. At approximately 8:30 p.m. on January 17, 1977, a Monday, respondent telephoned Robert Twitty, the assistant principal at Disston and told him he would not be at school for the rest of the week. Mr. Twitty asked for the reason, and respondent informed him that he was going to Washington, D.C. for President Carter's inauguration. Twitty told respondent to call Mr. Tom Zachary, Disston's principal, and notify him of respondent's plans. Respondent did attempt to call Mr. Zachary at his home, but Zachary was out. When Zachary got home, he returned respondent's call, but was unable to reach him. On January 17, 1977, respondent, had one and one-half days remaining which could be charged to sick leave. Respondent did not return to school that week. On January 21, 1977, a Friday, the Pinellas County schools were closed due to cold weather. This decision to close the schools was not made by the Superintendent until approximately 9:30 p.m. on January 20, 1977. On Sunday evening, January 23, 1977, respondent again called Mr. Twitty at home and advised him that he would not be returning to duty at Disston on Monday because he was going to the county office to resolve some problems. Respondent telephoned Mr. John Hudson, the assistant superintendent for personnel, on Monday, January 24, 1977, but Hudson was not in. On Tuesday, January 25th, respondent had a doctor's appointment which took about two hours. He did not report to work on this day or for the rest of the school week. On Wednesday, January 26th, respondent spoke with Hudson on the telephone. While Hudson could not recall the substance of this conversation, It was respondent's recollection that Hudson told respondent to report back to Disston on Monday, January 31st. Dr. Douglas McBriarty, petitioner's director of instructional personnel, telephoned respondent on January 27, 1977, and told respondent that he had spoken to Superintendent Sakkis and, by his direction, respondent was to report to work the following morning. Respondent did not report to Disston on January 28th. At the hearing, respondent had no recollection of having talked to Dr. McBriarty on January 27, 1977. On the morning of January 31, 1977, respondent reported to work at Disston. He was called into Principal Zachary's office and was told that Dr. McBriarty would be coming out to the school later to discuss respondent's absence from school. Respondent then went up to his classroom. Assistant principal Twitty came into respondent's classroom and told him that Zachary wanted to see his lesson plans. Feeling that he was being harassed by Zachary, respondent told Twitty that he was leaving school and going to Clearwater to the county offices. As respondent was walking out to his car, Mr. Zachary came out to the parking lot and told respondent not to leave because Dr. McBriarty was coming. Respondent left the school and did not return. By letter dated February 2, 1977, to respondent from Superintendent Sakkis, respondent was notified that he was suspended from his duties at Disston without pay beginning Monday, January 24, 1977, and that it would be recommended to the School Board that he be dismissed. This action was based upon charges that respondent had been guilty of being absent without leave, misconduct in office, gross insubordination and willful neglect of duty. These charges were supplemented and amended by pleadings dated May 25, 1977, and June 27, 1977. Respondent had previously been suspended by the School Board without pay from March 4 through March 19, 1976. This action was based upon misconduct in office in that respondent had been absent without proper authority. (Exhibit No. 2) Prior to being transferred to Disston Middle School in January of 1975,. respondent taught biology and general science courses for five years at Dixie Hollins High School. Kenneth Watson, then principal of Dixie Hollins, had numerous problems with and complaints about respondent. These involved the grading and disciplining of students in his classes, the quality of his teaching, refusal to admit to his class a student who had been given an admission slip by the dean, the school's receipt of telephone calls and messages for respondent unrelated to his teaching assignments and respondent's relationship with his students. Although respondent was the first black teacher at Dixie Hollins, Principal Watson did not conceive respondent's problems to be of a racial nature. He felt that respondent's difficulty was the manner in which he handled students and presented materials to them. Dr. McBriarty observed respondent's classes at Dixie Hollins on three or four occasions and found that respondent was not able to communicate with students and that there was not a satisfactory teaching relationship between respondent and his students. Feeling that respondent was no longer effective at Dixie Hollins and in order to allow him an opportunity to improve his performance, it was determined by respondent's superiors that he should be transferred to Disston Middle School in January of 1975. This was to be a temporary transfer until a position was available in another high school. Prior to his transfer to Disston, respondent ordered from Westinghouse Learning Corporation a biology course instructor's kit for a 30-day on-approval examination. The invoice was addressed to respondent at Dixie Hollins High School, and the total amount due if the materials were not returned within 30 days was $177.25. The merchandise was ordered by respondent without a prior purchase order and was not returned within the 30-day period. When the bill from Westinghouse came to the attention of the school, which was after respondent had been transferred to Disston, inquiries were made. No one seemed to know where the kit was. The materials were finally returned to Westinghouse some months later and the charge was cancelled from the School Board's account. There was no evidence that respondent ever personally requested the school or the county to pay for this material. Although respondent was dissatisfied with being assigned to teach in a middle school in lieu of a high school, his first semester's performance at Disston Middle School was without serious criticism and his principal's appraisal ranged from good to excellent. His problems began when he was reassigned to Disston for the 1975/76 school year, and intensified during the 1976/77 school year. On the "instructional appraisal and improvement form for 1975/76, Principal Tom Zachary rated respondent as unsatisfactory in the areas of classroom management, preparation and organization, and attitude and growth. Zachary urged respondent to take part in middle school certification. Respondent was again assigned to Disston for the 1976/77 school year, although he had requested a transfer to a high school. Due to the poor evaluation for the previous year, in August of 1976, Principal Zachary prepared and discussed with respondent a list of objectives and directives to help improve respondent's instructional abilities and his evaluation for 1976/77. (Exhibits 12 and 13) During the first semester of the 1976/77 school year, several of respondent's superiors visited his classroom. Principal Zachary observed respondent's classes on several consecutive days in November of 1976. During his first days' observation, the students were assigned to copy materials from the blackboard. When he visited the class the following day, no reference was made by respondent to the blackboard material. Zachary found the students to be inattentive to respondent with respondent providing no signs of direction, no continuity and no teaching techniques. In Zachary's opinion, no learning was taking place and respondent's classes were completely disorganized. Area assistant superintendent Lee Benjamin observed three of respondent's classes on December 14, 1976. While he found the second period class, a class of higher ability, to be satisfactory, the first and third period classes were observed to be chaotic with no real learning or discipline occurring. Mr. Benjamin felt that the students did not understand what the assignment was due to the unclear nature of respondent's instructions. It was Benjamin's opinion that respondent had great difficulty with teaching and discipline and therefore was not effective. In early January of 1977, science supervisor William Beggs visited three of respondent's classes. While he found the second period class to have some degree of order and direction, the first and third period classes were observed to be highly disorganized. The students did not appear to understand what they were supposed to accomplish and respondent was not adhering to his lesson plans. Upon a review of respondent's lesson plans, Beggs did not feel that respondent was covering the subject matters expected of a seventh grade life science course. In late November of 1976, respondent was involved with the TORC (teacher renewal) program. Dr. Shelby Ridel, a resource teacher for petitioner, observed respondent's classes to be utterly chaotic, with no pattern or continuity in the tasks to be performed. The students were confused by the assignments given them, and respondent would not answer their questions. He often sent students out to the hall for disciplinary reasons. While respondent appeared cooperative with and receptive to the changes suggested by Dr. Ridel, she saw no real improvement in his classes over the several weeks she worked with respondent. She felt that respondent's greatest problem was classroom management. Assistant Principal Twitty, who was responsible for the discipline of Disston students, experienced more than usual discipline problems with respondent's classes. Respondent was told on numerous occasions not to put students out in the hall for disciplinary reasons. Nevertheless, he continued to do so. Such action not only violated school policy; it also was disruptive to teachers in nearby classrooms. Along with several other teachers, respondent was assigned to an interdisciplinary team to work with students and their parents. As a part of his responsibilities, he was to prepare the science section of a newsletter. He often failed to attend the team meetings and, on at least one occasion, he failed to prepare his section of the newsletter. Prior to his departure from Disston in January of 1977, respondent had checked out a tape recorder and several books from the school library. He had also borrowed from Dr. Ridel a seventh grade science curriculum guide. The tape recorder was returned by respondent in April of 1977, and the other items were not returned until June or July, 1977. Respondent's explanation for this delay was that no one had requested the return of these materials and that he did not want to go back to Disston after his suspension. Respondent admitted that his classes gave the appearance of being chaotic and disorganized. It was his explanation that he utilized an individual, systems approach to teach his students and that his superiors did not understand or approve of this teaching technique. He further explained the adverse reaction by his superiors to his classroom techniques by emphasizing the lack of teaching materials and equipment made available to him at Disston, his inexperience in teaching sixth and seventh grade students and his desire to return to high school teaching.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that respondent's teaching contract be cancelled and that he be dismissed as an employee of the Pinellas County school system. Respectfully submitted and entered this 26th day of October, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518 George M. Osborne, Esquire Rutland Central Bank Building 55 Fifth Street South St. Petersburg, Florida 33701 Ronald G. Meyer, Esquire Suite 990, Lincoln Center 5401 West Kennedy Boulevard Tampa, Florida 33609
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues is this case are: (1) whether a letter written by an attorney for Respondent, Department of Education (Respondent or Department), is an unpromulgated rule; whether Petitioner, Harid Conservatory of Music, Inc. (Petitioner or Harid), is substantially affected by the letter it seeks to challenge as an unpromulgated rule; and (3) whether, if Petitioner prevails, it is entitled to attorney's fees and costs pursuant to section 120.595(4), Florida Statutes (2010).1/
Findings Of Fact Harid is a not-for-profit corporation that provides training for ballet dancers at its campus in Palm Beach County, Florida. Harid recruits ballet dancers not only from Florida, but, also, from other states and other countries. Ballet students are admitted to Harid based primarily on their artistic talent, and once admitted, attend tuition-free. Harid is highly selective, with an average enrollment of only 40 students. Harid students reside at Harid for all but approximately two and one-half months each year. Harid receives funding from benefactors and also engages in fundraising to carry out its training program. Harid generates more than enough from these funding sources to cover the costs of ballet training. Therefore, Harid is able to make additional financial assistance available to those of its students whose parents otherwise would be unable to afford the additional cost of room and board. Harid students are all high-school aged. As a result, while these students are enrolled at Harid, in addition to their intensive ballet training, arrangements must also be made for the dancers to receive a high school education. Harid students are required to attend high school, meet and maintain high academic standards, and remain on track for high school graduation. While Harid enrollees are in residence at Harid, they are under the supervision of a number of different Harid staff and faculty, including Harid's director, registrar, residence hall managers and supervisors, and other Harid staff and faculty. The residence hall supervisors reside in Harid's residence hall. Harid staff and faculty oversee all aspects of the dancers' lives, both on campus and off, during the time that Harid dancers are in training. The evidence did not establish that a specific staff person is assigned the responsibility for individual supervision of each individual Harid dancer; rather, the description given by Harid's director was that of multiple staff members in different roles, who cumulatively serve as the dancers' supervisors. The oversight role collectively played by numerous individual staff members at Harid was not shown, nor alleged to actually displace the parents of these students from their parental roles while their children are at Harid. In addition, presumably, during the two and one-half months that the Harid dancers are not in residence at Harid, they return to their homes and remain under the supervision of their parents. In other words, Harid staff and faculty oversee the students' lives while they are in residence at Harid to the extent necessitated by the remoteness of the students' parents. Since 1992, Harid students have attended Spanish River Community High School (Spanish River), a public school within the District, in order to earn credits in academic core subjects. The oversight role Harid staff members play with regard to Harid students includes acting as their "parents" for purposes of providing consents and executing other forms needed by Spanish River and the District, serving as contacts for notifications regarding the students, and communicating with Spanish River and the District on matters relating to Harid students. The record does not reflect whether one individual, or multiple individuals, at Harid perform these functions of signing consents, executing forms, serving as the contact for notifications, and communicating with the school and the District regarding Harid students. No evidence was presented regarding the history of how exactly Harid students came to be allowed to attend Spanish River; what, if any, documentation has been provided to Spanish River to support requests to enroll Harid students in the high school; or whether that process has changed over the years. However, the record shows that in July 2007, the District promulgated new policies on student residence enrollment requirements that are now in effect for the District's public schools. The District has had, for many years, a promulgated policy, Policy 5.01, which provides general criteria for student assignment to District schools. According to the history notes for this rule, Policy 5.01 was originally adopted in 1972 and was amended numerous times since then, as recently as December 12, 2008. The prior versions of the general criteria rule are not in the record. In its current form, which has been in effect since December 2008, Policy 5.01(1)(b) includes the following as general criteria for student assignment: Students shall be assigned to schools based on residence of the student/parent/guardian as stated below . . . The residence of a minor student shall be the domicile of his/her parent, as defined in Fla. Stat. § 1000.21(5) (which includes a legal guardian). . . The residence of a student who is married or above the age of majority shall be his/her domicile. The Superintendent/Designee may, in unique and hardship cases, determine residence based upon approval of the use of a notarized statement executed by the parent or legal guardian granting a general power of attorney and general custody of a student to a resident of Palm Beach County consistent with Policy 5.011.[3/] (Emphasis added). Policy 5.011, entitled, "Student Residence Enrollment Requirements," was more recently promulgated, first taking effect on July 11, 2007, according to the history note. This policy reiterates the general rule in Policy 5.01 that students must attend the school in the attendance zone where their parents or legal guardians are domiciled, or for students who are married or not minors, where the students are domiciled. The first five sections of Policy 5.011 specify in great detail the documentation that is required to prove domicile, the penalties for submission of false information, and the special provisions that apply to enrollment of homeless students and students in foster care. Policy 5.011-6 applies to "Persons Acting as Parent," and provides in pertinent part: For purposes of establishing student residency, a "parent" is defined as either or both natural or adoptive parent(s) of the student, the student's legal guardian, a person in a parental relationship to the student, or a person exercising supervisory authority over the student in place of the parent, pursuant to Fla. Stat. A. § 1000.21(5). The student must actually reside with the parent or Person Acting as Parent as the student's primary residence. . . . A Person Acting as Parent must complete form PBSD 1543, which is incorporated herein by reference and is available on the District's web site at www.palmbeach. k12.fl.us/Records/FormSearch.asp. Form PBSD 1543, incorporated by reference in the District's rule, is an Affidavit of Person Acting as Parent. The stated purpose of the affidavit "is to verify the status of a person acting as parent." The instructions on the form require that the form be completed and submitted to the school where the student is seeking to enroll. In pertinent part, the affidavit form provides: I, (name of guardian/person acting as parent) , am acting as parent for the following named child or children (print name of child or children): I, (person acting as parent/guardian) am currently residing with the above-named child(ren) at the residential address address below in Palm Beach County, and this is the child(ren)'s primary residence . . . * * * Pursuant to Florida Statutes § 1000.21, I qualify as a person acting as "Parent" under the following circumstances (check one only) Guardian of a student (legal guardianship papers are required) Person in a parental relationship (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) Person exercising supervisory authority over a student in place of a parent (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) (Emphasis added). As with the penalty warnings for falsification set forth in Policy 5.011, the form Affidavit of Person Acting as Parent warns of the statutory penalties for making false declarations. In addition, by signing the affidavit, a person acting as parent acknowledges the following: "I understand that falsification of this information may result in the withdrawal of my child(ren) from this school and that falsifying my residence when enrolling my child(ren), may be referred to law enforcement for prosecution." The controversy in this proceeding arose according to Robert Glassman, a senior counsel in the District's Office of Chief Counsel, "when the administration at [Boca Raton High School] requested authorization to register a number of students at Boca Raton H.S., who are enrolled at the Bucky Dent Baseball Academy" (Bucky Dent Baseball) in Boca Raton, Florida. Mr. Glassman elaborated on the Bucky Dent Baseball request: On February 24, 2011, our office received a request for information on the procedure to enroll students at [Boca Raton High School] who were participating in the Bucky Dent Baseball Academy in Boca Raton. In support of the School's position, reference was made to a similar program which was operated by the Harid conservatory in conjunction with Spanish River H.S. The program at Spanish River has been in existence for quite some time. This is the first time a request has been made for students associated with the Bucky Dent baseball academy. Both schools were relying on provisions of School Board Policy 5.011, which does permit schools to accept for enrollment those children from other persons acting as parents under limited circumstances. (see Sch. Bd. Policy 5.011-6) . . . [It was] agreed that we should contact the State DOE to determine their position on the issue. As a result I did contact the General Counsel's Office for FDOE, and spoke with [assistant general counsel] Mari M. Presley, on March 2, 2011. (Emphasis added). Ms. Presley confirmed that she received Mr. Glassman's telephone call on March 2, 2011. That same day, Ms. Presley repeated the question posed to her by Mr. Glassman in the following email to two colleagues at the Department: I have an FTE residency issue that I was hoping you could help me resolve. In Palm Beach county, there are two private "academies" (one for baseball and one for dance) that recruits [sic] from anywhere, including out of state. They have some students who live on campus, and some who live off campus. The students who do not live in Florida have their parents sign a form that purports to give someone (apparently a staff member at the academy) "guardianship for purposes of education." Once that is signed, the "guardian" enrolls the student in public school in Palm Beach County. (As an aside, the tuition is $20,000 to $30,000). Palm Beach County does not believe this is right, but they want to know from us whether they can deny enrollment under these circumstances. They note that their policies adopt the definition of parent that is found in [section] 1000.21(5) [Florida Statutes], "either or both parents of a student, any guardian of a student, any person in a parental relationship to a student, or any person exercising supervisory authority over a student in place of the parent." I'm inclined to say that a parent cannot create residency through what is essentially a sham "guardianship" form. What are your thoughts? Do we have any history with this topic? Do you know of any [Technical Assistance Papers] or guidance we have issued in the past on this? Do you know what the auditors would advise on this? (Emphasis added). Ms. Presley prepared a written response to Mr. Glassman's query in the Letter challenged by Harid in this proceeding. In that letter, Ms. Presley followed her inclination as described to her colleagues five days earlier and drew support from an "analogous" situation. The text of the Letter is set forth in full below: Re: Florida Residency for Public School Enrollment Dear Mr. Glassman: You have brought to our attention an issue relating to whether certain students are residents of the State of Florida for purposes of enrolling in Florida public schools. You indicated that one or more private academies recruit students from out of state to attend their academies at which they receive instruction in an extracurricular field of endeavor (e.g., baseball or dance). The parents of the out-of-state students do not live in Florida, but the students themselves live in Florida during the period of enrollment in the academy, either on or off of the academy's campus. In an apparent effort to establish Florida residency, the parents of these students sign a document purporting to give someone associated with the private academy "guardianship over the education" of the student. Utilizing this "guardianship," the academy then attempts to enroll the student in Florida public schools, claiming the student is a Florida resident. This letter is to advise you that the Florida Department of Education would not consider such a student a resident of the state for purposes of enrollment in Florida public schools. As I am sure you are aware, the residence of a minor ordinarily follows the residence of his or her parents. In the event that a child has been entrusted to a guardian who sits in loco parentis, the residence of the child may follow the residence of the guardian. However, in the circumstances described above, the parents remain the true guardians of the student. Allowing resident status based on the "guardianship" described above would elevate form over substance, and we therefore conclude it is not sufficient to establish residency in this state for purposes of enrolling in public schools. This situation is analogous to the circumstances that prompted an OPPAGA[4/] report dated October 2003, a copy of which is attached hereto. In that report, OPPAGA examined whether an out-of-state exceptional student education (ESE) student was a "resident" of Florida for purposes of public school FTE if the student came to Florida to attend a residential care facility. As in the situation described above, the students "lived" in Florida at the private facility but the parents lived out of state. OPPAGA concluded that since the residency of the student followed that of his/her parents, such a student would not be a resident of the State of Florida and would not be eligible to attend public school in this state. Such a student could not be reported for FTE funding. That position was codified in section 1003.57(2)(a), Florida Statutes. The same conclusion applies to the situation described above. (Emphasis added). The Department does not dispute the fact that it has not promulgated the Letter as a rule in accordance with section 120.54. The specific question posed by Mr. Glassman, as summarized in Ms. Presley's email to her colleagues and again in the Letter, is whether having a child's out-of-state parent(s) execute a form "guardianship over the education," granting such a "guardianship" to a staff person at one of the two extra- curricular training academies in Palm Beach County, Florida, qualifies that staff person as a "guardian." Mr. Glassman apparently was under the misimpression, when he asked his question, that both Bucky Dent Baseball and Harid used a form "guardianship over the education" in order to attempt to establish Palm Beach County residency for their enrollees. Mr. Glassman's description was based on a specific inquiry from Bucky Dent Baseball; apparently, it was the Bucky Dent Baseball program that described Harid's operations as similar in an effort to obtain approval for enrollment of its baseball students. Regardless of how Mr. Glassman got his impression that the programs were similar, the facts assumed in the Letter were not shown to fit the Harid program. There were no allegations in the petition, nor was any documentation offered to establish, that Harid uses a form "guardianship over the education" as described in the Letter. Harid's counsel acknowledged at the oral argument that Harid does not utilize a form "guardianship over the education." Harid does not ask parents of enrolling ballet dancers to execute a form "guardianship over the education" that gives a Harid staff person "guardianship over the education" of the Harid enrollee. Upon receiving Ms. Presley's letter, Mr. Glassman set forth his suggested approach for the District to follow in dealing with the request for authorization to register students from Bucky Dent Baseball. His analysis provided in pertinent part: Registration of Students from Bucky Dent BB Academy . . . I received Ms. Presley's written response to my inquiry on March 11, 2011. . . . Essentially, it is the opinion of the FDOE that under the circumstances of both the dance and baseball programs at issue here, the residency of the student follows that of the natural parent. Thus it would be improper to allow a student who does not live with his or her parent(s) with in [sic] the School's boundaries to enroll in such school. The DOE Counsel's opinion is based upon the OPPAGA report dated October, 2003. * * * While the [OPPAGA] report . . . [applies] to exceptional students' instruction, the logic of the placement issue would be the same for any student. The provision of [District Policy] 5.011(6), would apply in the unique circumstance such as where the natural parent(s) could not provide for the care of their child and had to designate someone to be the child's guardian for all purposes. In the two situations here the parents are simply electing to send their children to a private school for enrichment on certain extracurricular activities (dance or baseball) and then asking the School Board of Palm Beach County to provide the educational component of the program to those students whose parent(s) do not live within the boundaries of that particular school. Allowing such students to be enrolled would be contrary to the opinion of the FDOE and the intent of School Board Policy 5.011-6. However, since the program at Spanish River has students already enrolled, who are near the end of their high school career, it may be considered unjust to penalize those students. Consequently, the District may consider whether those students who are currently enrolled at Spanish River in grade 11 and 12, through the Harid Conservatory, will be allowed to complete their registration at that school if they desire to do so. All other existing students and any new students seeking registration for the next school year (2011/2012) from either program will not be accepted. It should be understood that there is no certainty that those students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above to be registered. (Emphasis added). The District apparently accepted Mr. Glassman's suggested approach. On March 28, 2011, the District's assistant superintendent sent the following email to two District school principals: Dear Principals: Based on a legal opinion from the Florida Department of Education, dated March 7, 2011, the DOE would not consider an out of state student attending a private academy (i.e. Bucky Dent Baseball Academy or Harid Dance Conservatory [sic]) "a resident of the state for purposes of enrollment in Florida public schools." Therefore, these students cannot be enrolled in Spanish River High School nor Boca Raton High School, and those that are currently enrolled must be made aware of the need to find other options for graduation. The exception will be at Spanish River High School, where current Seniors and next year's Senior class will be allowed to graduate from Spanish River. No other students can be enrolled, and grade 9 and 10 Harid Dance Conservatory [sic] students will not be allowed to attend after this year. The District's decision regarding enrollment of Harid students was also conveyed to Harid, according to the affidavit of Harid's director. Neither the substance, nor the means of the District's communication of its decision to Harid are of record. Harid describes the injury it believes it will suffer because of the Department's Letter, as follows: The impact of the Letter on Harid is direct and not speculative. As a not-for-profit entity, Harid's ability to operate its programs and to offer talented young dancers professional training without sacrifice to their academic education will be impaired. Harid's efforts to attract and enroll new students -- as well as retain its current student body -- will be significantly impaired if Harid is unable to offer access to the public schools of Florida, is required to charge students tuition for private high school, or must incur the expense of private school tuition on top of the expenses already incurred for the professional ballet dance training provided to Harid students. (Emphasis added). Harid alleges that this described impact is the type that the Florida Education Code is designed to protect, because the definition of "parent" in section 1000.21(5), Florida Statutes, includes "a person exercising supervisory authority over a student in place of the parent." Harid claims to meet this description and, as such, claims that it has a legally recognized right to be a "parent" under the Florida Education Code. Harid's petition and motion for summary final order request the following relief: (1) a determination that the Letter is an invalid unadopted rule; (2) an order that the Department immediately discontinue reliance upon the Letter; and that the Department pay Harid's attorney's fees and costs incurred in this proceeding. In contrast, Harid's cross-motion for summary final order and Proposed Summary Final Order both revise the second category of requested relief to provide: "All reliance upon the [Letter] shall immediately be discontinued." No evidence was presented to support a Finding of Fact that at least 30 days before Harid filed its petition initiating this proceeding on May 2, 2011, the Department received notice that its Letter may constitute an unpromulgated rule. The petition itself does not allege that such 30-day advance notice was provided.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether the Respondent, Benita A. Roberts (Respondent), committed the violations alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the entity charged with the responsibility under Florida law to operate, control, and supervise the administration of all public schools within the Miami-Dade County school district. As such, disciplinary actions against its employees fall within its authority. At all times material to the allegations of this case, the Respondent was employed by the Petitioner and served as the school cafeteria manager at Natural Bridge. The Respondent has been continuously employed within the school district since 1979. She began employment at the age of 20 and was assigned duties as a pot washer. Later the Respondent rose through the ranks to the position of baker. Eventually, after completing training, the Respondent became a food service manager. Throughout her career she served in various capacities without prior disciplinary action being taken against her. In fact, the Respondent received commendations for her hard work, and her kitchen served as a training place for others. Prior to the incidents complained of herein, the Respondent had served the school district with distinction. The Respondent was assigned to Natural Bridge in September of 1992. For many months prior to December 1999, Adrian Ebanks was employed at Natural Bridge as a part-time cafeteria worker. Mr. Ebanks was limited to 30 hours per week or 60 hours per pay period for compensatory purposes. That is, as his manager, the Respondent was supposed to pay Mr. Ebanks for no more than 60 hours per pay period. To arrive at the 60 hours, Mr. Ebanks was scheduled to work no more than 6 hours per day for the 10 days constituting the pay period. According to the Respondent, Mr. Ebanks exceeded the 60 hours numerous weeks but could only be paid for the 60 hours he was approved to work. According to the Respondent, Mr. Ebanks was a dedicated and hard-working cafeteria helper. Between December 23, 1999 and June 16, 2000, Mr. Ebanks was incarcerated and did not report to Natural Bridge to perform his duties. Nevertheless, because the Respondent believed he was owed time for work performed prior to that time, the Respondent continued to complete the payroll record for Mr. Ebanks as if he had worked on the dates indicated. It is undisputed he did not work during the period December 23 through June 16, 2000. The Respondent was not authorized to complete the payroll record for Mr. Ebanks as she did. If, in fact, Mr. Ebanks was owed for additional time worked but not compensated, she should have contacted a supervisor to approve either additional pay for the hours as they accrued or overtime. In truth, Mr. Ebanks was not eligible for overtime pay. The Respondent sought to reward dedicated cafeteria workers who were, in her judgment, underpaid and hardworking. The system did not allow her to give additional pay beyond the time allocated to part-time workers. Regardless, the Respondent attempted to compensate such employees but did not keep a formal log that would demonstrate the actual hours worked that exceeded the 60 hours that could be compensated. In fact, despite her assessment that Mr. Ebanks was owed for the hours he was paid for while incarcerated, there is no documentation to establish that such hours fairly related to unpaid overtime logged prior to his incarceration. Additionally, no cafeteria worker who might have corroborated the Respondent's conclusions testified with regard to the matter. Moreover, the Respondent did not bring the problem of how to fairly compensate her employees to the attention of anyone until after the allegations of the instant case came to light. And, unfortunately, that was not until a year after the incidents complained of in this case. Not until June of 2001 did the principal become aware of the payroll issues. At that time an individual complained to the principal that the Respondent had paid Mr. Ebanks while he was incarcerated. The investigation of that complaint led to the instant action, a criminal investigation of the matter, an audit, and disciplinary action against Mr. Ebanks and the Respondent. As a result of the payroll records submitted by the Respondent, the Petitioner improperly paid Mr. Ebanks $3,255.48. A conference for the record was conducted with the Respondent on November 7, 2001. At that time, the Respondent admitted she had submitted the payroll records for Mr. Ebanks while he was incarcerated. On February 13, 2002, the Petitioner took action to suspend the Respondent and to initiate dismissal proceedings against her for just cause. The "just cause" was alleged to be deficient and/or non-performance of job responsibilities, misconduct in office, lack of good moral character, and violation of School Board rules dealing with employee conduct. On March 5, 2002, the Respondent pled guilty to official misconduct, petit theft, and grand theft. All of the charges arose from the findings set forth above regarding the completion of the payroll records for Mr. Ebanks. As a result of the plea entered by the Respondent, the court imposed 18 months of probation and required the Respondent to remit fees and costs associated with the prosecution of the case. It is unknown as to whether either Mr. Ebanks or the Respondent made restitution for the $3,255.48 paid to Mr. Ebanks during his incarceration. It is certain the Respondent did not acknowledge that her completion of the time records was contrary to school board guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order affirming the decision to suspend and dismiss the Respondent from her position as a cafeteria manager with the school district. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 32312-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Evan Jay Byer, Esquire Evan Jay Byer, P.A. 1999 Northeast 150th Street Suite 102 North Miami, Florida 33181 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
