The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6B-1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Weiss holds Florida Educator Certificate 845839, covering the areas of elementary education and English to speakers of other languages, which was valid through June 30, 2008. Mr. Weiss has an application pending for a professional certificate in the area of educational leadership. At all times material to the Administrative Complaint, Mr. Weiss was employed as a computer teacher at Tice Elementary School (Tice Elementary) in the Lee County School District (School District). He worked primarily with third, fourth, and fifth-grade students. The School District has a policy which prohibits the use of the School District’s computers for viewing inappropriate content. The School District’s Regulation 3.41, entitled “Acceptable Use Policy Governing Internet and Technology Access,” provides: The following procedures shall be followed for governing Internet and technology access. Failure to adhere to these regulations shall result in suspension and/or revocation of access to District information resources pending formal investigation and could result in termination of employment (staff) or suspension/expulsion (student) from the School District. * * * (2) All users are prohibited from: (a) Deliberate access or transmission of obscene, indecent, abusive, or defamatory or otherwise offensive material in any form. The School District maintains an internet filtering system on the School District’s computers. The filtering system is called Chaperone and is used to monitor all accounts using the School District’s network. If a user of the School District’s network visits a known adult-content site, Chaperone blocks access and alerts the School District of the incident. Chaperone also looks for patterns in the access to content which appears to be adult-related, even if the website being viewed is not on the list of inappropriate sites. If Chaperone detects a pattern of behavior involving the viewing of inappropriate sites, a technical support person at the school where the computer is located will be alerted. The alerts sent to the school detail the username, IP address, website, time, and date of the incident. An alert is not typically generated the first or second time an inappropriate site is viewed, but is generated when a pattern of behavior develops. Access to a website is recorded by the central office of the School District. If Chaperone does not detect anything inappropriate about the website reviewed, no alert is sent to the school. All users in a school have a unique user ID to identify them on the network. Mr. Weiss’ user ID at Tice Elementary was “RobertWe.” Mr. Weiss’ classroom was the computer laboratory. The classroom contained computers which were used by the students, and Mr. Weiss also had a computer for his use as the teacher. At times the number of students exceeded the number of computers in working order, and a student would use Mr. Weiss’ computer during class. The laboratory was open to any teacher or class when it was not otherwise occupied by Mr. Weiss’ class. On November 1, 2006, Chaperone generated a report and sent an alert to Amanda Jones, Tice Elementary’s technology support specialist, notifying her that a computer at the school had been used to access inappropriate material. The report identified the username associated with the incident as RobertWe. The computer involved was the computer assigned to Mr. Weiss. Ms. Jones gave the report to the assistant principal at Tice Elementary, Denise Fitzpatrick. Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss in the classroom. Ms. Fitzpatrick deferred in the matter to the principal of Tice Elementary, James Jackson. Mr. Jackson went to Mr. Weiss’ classroom and found Mr. Weiss on a computer viewing a site called Sparksvideos.com. Weiss claimed that he was looking for videos for the students to use. He told Mr. Jackson that inappropriate materials had “popped up” on his screen and that he had deleted the inappropriate materials immediately. Mr. Jackson gave Mr. Weiss an oral reprimand and warned Mr. Weiss to be careful in what he viewed because young children were present in nearby classrooms. Mr. Weiss’ claim that the inappropriate materials were “pop-ups” is without merit. Pop-ups are intrusions on a website from a third-party, and the viewer usually has no control over the intrusion. Pop-ups differ from “solid site” in that the solid site stays on the screen and does not open new windows without user interaction. Ms. Jones was asked to pull up the list of sites that were involved with the November 1, 2006, incident to determine if Mr. Weiss’ explanation of pop-ups was true. The videos that she pulled up were video clips of different women. Ms. Jones took the list of sites involved in the incident home to view on her unfiltered computer. She found that the sites were not pop- ups, but were videos of females engaging in sexual activity. Mr. Weiss’ assertion that he deleted the pop-ups as soon as they came up is false. The Chaperone report showed that during the time period in which inappropriate materials were being accessed, Mr. Weiss remained on the computer sites for approximately 12 minutes. On January 10, 2007, Chaperone sent another report to Ms. Jones at Tice Elementary, alerting her of inappropriate activity. Ms. Jones reported the activity to Dwayne Alton, the technology director for the School District. He instructed Ms. Jones to look through each computer in the school to determine which computer was involved. Ms. Jones and Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss alone. A search of the computers in the classroom turned up a computer which had accessed inappropriate sites. Mr. Weiss told Ms. Fitzpatrick that it was probably a student in one of his third grade classes. He identified the student, and Ms. Fitzpatrick went to question the student. The student identified by Mr. Weiss was a student whose primary language was Spanish, not English. The student barely spoke English and did not appear to have the level of technological knowledge or the communication skills necessary to access the inappropriate materials. The student stated that he had accessed the Disney site, and his claim is supported by the Chaperone report. Mr. Weiss asserts that possibly a student could have confused the website with the name of a cartoon character and accessed the inappropriate material by accident. Such an assertion is without merit. The Chaperone report shows that the account involved accessed several inappropriate sites between 9:28 a.m. and 9:38 a.m. One of the same adult websites was accessed by the same account at 8:50 a.m., belying the appearance of an accident. Mr. Weiss’ claim that a student accessed the inappropriate materials is not credited. Ms. Fitzpatrick took the list of sites involved in the January 10, 2007, incident and viewed the sites at her home. She found them to be inappropriate, including hundreds of small, sexually explicit images. It is concluded that on January 10, 2007, Mr. Weiss accessed the site containing the sexually explicit images. On January 12, 2007, another Chaperone report was generated based on activity from a computer in Mr. Weiss’ classroom. Ms. Jones became concerned that Mr. Weiss may have been using a student account to mask his usage of the computer. She contacted Mr. Alton, who told her to wait until a pattern of activity occurred and have Ms. Fitzpatrick go to the classroom while the activity was occurring. Another Chaperone report was generated, and Ms. Fitzpatrick took the report and went to Mr. Weiss’ classroom. She found Mr. Weiss alone on the computer. When she came into the room, he minimized the window that he was viewing on the computer. She put the report on his desk and told him that there was a problem. Mr. Weiss responded that he had been looking up the word “boobs” because a student had accessed it during class. However, the search term that triggered the Chaperone report was “blow job.” The Chaperone report listed the activity being generated by Mr. Weiss’ account. Mr. Weiss offered to share his internet browsing history with Ms. Fitzpatrick. After Mr. Weiss left for the day, Ms. Fitzpatrick and Ms. Jones went to Mr. Weiss’ classroom to check the computer to see which sites had been accessed. The history had been deleted. The computer could not be restored back in its entirety to an earlier date because there was no restore data to use. Ms. Jones ultimately used a third-party software to bring back a list of the files viewed. Ms. Jones and Ms. Fitzpatrick recorded the list of files and reviewed them. There were thousands of files, many containing image files from inappropriate sites. About 70 percent of the files were sexual in nature and about 30 percent were jokes. Mr. Weiss had accessed these inappropriate sites. Mr. Weiss attempted to blame students for accessing inappropriate sites. He maintained that he kept a log of incidents in which students were accessing inappropriate sites. The log was never found, and, prior to being confronted with his own access to inappropriate sites, Mr. Weiss never mentioned a log to administrative staff at Tice Elementary or that students were accessing inappropriate sites. Mr. Weiss’ testimony that he maintained a log is not credible. Mr. Weiss resigned from his employment with the School District by letter dated February 5, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Robert E. Weiss guilty of violating Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6b-1.006(5)(a) and revoking his certificate for six years. DONE AND ENTERED this 14th day of November, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008.
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to section 112.3173, Florida Statutes (2010).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. On or about August 19, 1991, Mark G. Bollone began employment as an instructor with TCC, an FRS-participating employer. By reason of this employment, Mr. Bollone was enrolled in the FRS. Mr. Bollone was assigned a computer that belonged to TCC to assist him in the performance of his job duties, create curriculum, and communicate with students and faculty. Faculty at TCC are assigned computers primarily for creating curriculum and communication with students and faculty, but employees at TCC do use their computers for some other things, both for job-related purposes and for personal use. Mr. Bollone did not share his faculty office with anyone else and he kept his faculty office door locked when he was not there. Computer technicians, custodial workers, the police, and the Mathematics and Science Division office had keys to Mr. Bollone’s office. Computer technicians, custodial workers, the police, and office staff were not supposed to use Mr. Bollone’s computer, which was assigned for his exclusive use. On or about September 1, 2010, the Leon County Sheriff's Office executed a warrant at Mr. Bollone’s personal residence. During the execution of the warrant, Detective Robert H. Waller, Jr. conducted an interview with Mr. Bollone. Following the interview, Detective Waller contacted the TCC Campus Police, who elected to secure the computer equipment from Mr. Bollone's faculty office. On or about September 3, 2010, Detective Waller requested one of TCC's IT computer specialists to assist him in removing the hard drive from Mr. Bollone's work computer. On or about September 3, 2010, Detective Waller conducted an examination of Mr. Bollone's work computer hard drive and discovered three images of child pornography. Detective Waller found the child pornography among the folders associated with the LimeWire file-sharing program on the TCC computer. LimeWire is a peer-to-peer file-sharing program that had been installed on the TCC computer assigned to Mr. Bollone. LimeWire is not part of the software provided by TCC. LimeWire cannot be installed accidently by clicking on a link or opening an email, but must be downloaded, with the user’s consent. A user cannot download files using LimeWire by accident. LimeWire has a search feature which is used to intentionally seek out and download files. The forensic examination revealed that two still images of child pornography on the TCC computer assigned to Mr. Bollone had been downloaded from the Gnutella network through use of LimeWire on March 28, 2008,2/ and had been accessed subsequently. The forensic examination revealed that one video file of child pornography on the TCC computer assigned to Mr. Bollone had been downloaded from the Gnutella network through use of Limewire on March 31, 2008, and had been accessed subsequently. E-mails, lesson plans and other files bearing the name of Mark Bollone and associated with TCC classes had been created close to the times the child pornography files were downloaded, which reflected that Mark Bollone used the computer during this time. Detective Waller has completed training in digital evidence acquisition and has experience in computer forensics. His evidence as to the electronic files found on the TCC computer taken from Mr. Bollone on September 1, 2010, as well as the dates that the files had originally been downloaded and subsequently accessed, was very credible. Detective Waller also has experience in recognizing and identifying child pornography. His involvement with the North Florida Internet Crimes Against Children (ICAC) Task Force in seeking out child predators on the Internet includes work with several other task forces working on similar issues nationally. His evidence that two still images and one video file found among the other pornography located on the TCC computer issued to Mr. Bollone constituted child pornography was very credible. The ongoing criminal investigation by the Leon County Sheriff’s Office triggered Mr. Bollone’s writing of a letter to TCC President Barbara Sloan dated September 6, 2010. In the letter to TCC President Barbara Sloan, Mr. Bollone asserted that he would be cleared following the criminal investigation. In the letter to TCC President Sloan, Mr. Bollone admitted that, “I made mistakes. I misused my time and my resources while at work.” In the letter to President Sloan, Mr. Bollone admitted that, “I was stupid. I understand this and I own it.” In the letter to President Sloan, Mr. Bollone stated, “I am taking steps to become a healthier person. I am getting medical/professional help for my addictive behaviors.” At hearing, Mr. Bollone stated that the addictive behaviors he was referring to in the letter were on-line “fantasy” behaviors related to sexual identity issues with which he had been dealing. Mr. Brown, Acting Vice President for Academic Affairs at TCC, notified Petitioner on September 8, 2010, that because pornography had been found on his work computer in the criminal investigation conducted by the Leon County Sheriff’s Office, his employment was terminated effective October 1, 2010. Mr. Bollone was advised of his right to a hearing on the charge and the method for requesting one. Mr. Bollone did not request a hearing to contest these charges resulting in his termination from TCC. On or about September 10, 2010, Detective Waller filed, in connection with his investigation of Mr. Bollone, a sworn and notarized Summary of Offense and Probable Cause Affidavit with the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, LCSO Case No. 10-173144. On September 13, 2010, Mr. Bollone was arrested by the Leon County Sheriff’s Office. On or about January 6, 2011, Mr. Bollone was charged, by Amended Information, in relevant part, with three counts of possession of child pornography, a third-degree felony, in violation of section 827.071(5), Florida Statutes. On or about March 4, 2011, Mr. Bollone entered an agreement with the State Attorney's Office to plead no contest to three counts of possession of child pornography as charged in the Amended Information. On March 4, 2011, Mr. Bollone attended a plea conference in which he pled no contest to three counts of possession of child pornography on September 1, 2010, as charged in the Amended Information. On or about March 4, 2011, judgment was entered withholding adjudication of guilt on all counts. Mr. Bollone possessed child pornography on the computer owned by TCC, assigned to him to perform his duties as a Professor, and housed in his faculty office. Mr. Bollone was not convicted of aiding or abetting embezzlement of public funds. Mr. Bollone was not convicted of aiding or abetting any theft by a public officer or employee of TCC. Mr. Bollone was not convicted of bribery in connection with his TCC employment. Mr. Bollone was not convicted of any felony specified in chapter 838, Florida Statutes. Mr. Bollone was not convicted of an impeachable offense. Mr. Bollone was not convicted of any felony defined in section 800.04, Florida Statutes, against a person less than 16 years of age. Mr. Bollone was not convicted of any felony defined in chapter 794, Florida Statutes, against a person less than 18 years of age. Mr. Bollone had no inappropriate contact with a TCC student. Mr. Bollone had no inappropriate contact with a TCC student that was harmful to the student. During his tenure at TCC, Mr. Bollone always received satisfactory evaluations from his Dean. During his tenure at TCC, Mr. Bollone always received average or above evaluations from his students. In the 2007-2008 academic year, Mr. Bollone had excellent student evaluations. Mr. Bollone provided extra- curricular service to the College and community, including the mentoring of a new faculty member, service as a member of the Science Expert Review Committee for the Florida Comprehensive Assessment Test (FCAT), and membership on School Advisory Councils for Lincoln High School and Swift Creek Middle School. Mr. Bollone performed all of the duties and responsibilities of fulltime faculty members at TCC satisfactorily. In his 2008-2009 academic year, Mr. Bollone again had excellent student evaluations. Mr. Bollone’s new web-based BSC1050 class was successful. Mr. Bollone continued to provide extra-curricular services to the College and community. Mr. Bollone carried out all of the duties and responsibilities of a fulltime faculty member at TCC satisfactorily. Mr. Bollone is not retired from the FRS and is not receiving FRS retirement benefits. Petitioner’s substantial interests are affected by Respondent’s determination that Petitioner has forfeited his retirement benefits. Mr. Bollone downloaded the LimeWire file-sharing application to the TCC computer that had been assigned to him. The fact that the computer had been assigned to Mr. Bollone for his exclusive use at the time it was downloaded and the fact that there was limited access to the computer by others strongly support this conclusion. Petitioner downloaded still images of child pornography on March 28, 2008, and a video file of child pornography on March 31, 2008 onto his TCC-issued computer using the LimeWire file-sharing application. Although Detective Waller admitted he did not see Petitioner do so, the forensic evidence showing that the files had been downloaded on these dates, the fact that the computer had been assigned to Mr. Bollone for his exclusive use, and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement that he did not recall downloading those files was not credible. Mr. Bollone accessed those child pornography files from TCC’s computer after they were downloaded and prior to the discovery of these files by Detective Waller. The forensic evidence demonstrating that the files had been subsequently accessed, the fact that the computer had been assigned to Mr. Bollone for his exclusive use, and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement that he did not recall having viewed those files was not credible. Mr. Bollone knowingly possessed child pornography using the TCC computer that had been assigned to him. The fact that the computer had been assigned to Mr. Bollone for his exclusive use and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement at hearing that he had no knowledge of child pornography being on the computer was not credible. Mr. Bollone’s possession of child pornography was done willfully and with intent to defraud the public and TCC of the right to receive the faithful performance of his public duty. Mr. Bollone was aware that use of his TCC computer to acquire or view child pornography was a violation of TCC policies. The use of the TCC computer for possession of child pornography was contrary to the faithful performance of his duty as an employee, and was a breach of the public trust. Mr. Bollone realized or obtained, or attempted to realize or obtain, a profit, gain, or advantage to himself through the use or attempted use of the power, rights, privileges, duties, or position of his TCC employment. Mr. Bollone possessed the child pornography for his personal sexual gratification. Mr. Bollone was able to possess child pornography on the TCC computer only through the use of the power, rights, privileges and position of his employment at TCC. Mr. Bollone possessed this child pornography on the date the computer was taken from his possession, September 1, 2010, a time prior to retirement from the Florida Retirement System.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits, except for the return of his accumulated contributions as of the date of termination. DONE AND ENTERED this 19th day of October, 2011, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 19th day of October, 2011.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2016), or Florida Administrative Code Rules 6A- 10.081(2)(a)1. and 5.; and, if so, what penalty should be imposed.
Findings Of Fact The Florida Education Commission is the state agency charged with the certification and regulation of Florida educators. Respondent, Lillie Williams-Graham, holds State of Florida Educator’s Certificate 973805, authorizing her to teach Health Education. Respondent was employed by Duval Charter Scholars Academy (Duval Charter) in Jacksonville, Florida, as an eighth- grade English/Language Arts (ELA) teacher from August 29 to September 13, 2016. Respondent taught classes for only three days during that timeframe. Duval Charter is a Title I school where many students have behavioral problems. The school’s Principal, Carin White, testified that “historically the school has been a difficult school to work in.” She explained, “We did have a resource officer there for a reason, because students do tend to misbehave.” On August 31, 2016, student L.C. came to Principal White around 1:00 p.m., and complained to Principal White that Respondent had grabbed L.C. by the arm in the cafeteria and pulled her away from the table, out of the cafeteria, and up the stairs. Principal White was familiar with L.C. from Principal White’s internship with the prior principal during the last nine weeks of the 2015-2016 school year. Principal White testified she knew L.C. to be a good student who “did not typically get in trouble” in class, had no behavior record, and had no referrals on L.C. from the deans. At roughly the same time L.C. came to Principal White with her complaints about Respondent, students K.B. and S.H. came to Merralee Block, the school’s Guidance Counselor. K.B. complained to Ms. Block that Respondent had hit her on the head in class while her head was down on her desk. K.B. and S.H. also related that Respondent had grabbed another student, D.W.’s, face during class. Ms. Block had some familiarity with K.B. because K.B. volunteered in Ms. Block’s classroom with younger students. Otherwise, Ms. Block’s relationship with K.B. was no different from any other student to whom she was guidance counselor. Ms. Block also had a relationship with S.H. prior to the 2016-2017 school year. During the prior school year, S.H. worked with a group of younger students in Ms. Block’s classroom on a weekly basis. Ms. Block described S.H. in glowing terms: “a fine young woman,” “a really beautiful person,” and a good student. Ms. Block deemed the students’ complaints serious enough to bring to the attention of Principal White. Ms. Block stepped into Principal White’s office, where Principal White was speaking to L.C. Principal White stepped into the hallway with Ms. Block where K.B. and S.H. were waiting. Ms. Block informed Principal White that the students had complaints about Respondent touching them. It was an early dismissal day and students began crowding the hallway. D.W. and I.H. were walking together, saw K.B. and S.H., and stopped to talk.1/ As Principal White explained, “[T]hey just kind of all converged, and they started their, you know, oh, yeah, that happened.” At some point in this informal setting, D.W. stated something to the effect of “oh, yeah, she grabbed my face one day too.” Principal White “shushed them all” and asked to speak with each student individually. Because it was dismissal, Principal White took only verbal statements and informed them she would take written statements the following day. About 4:00 p.m. on August 31, 2016, Principal White asked Assistant Principal Meagan Connolly to join her in a meeting with Respondent. During the meeting, Principal White informed Respondent of the students’ complaints and asked to hear Respondent’s side. Respondent admitted touching student D.W.’s face in class, “gently” to get his attention. Respondent admitted touching L.C. on the arm to get her attention in the cafeteria, but denied pulling her. Respondent denied touching K.B. During the interview with Respondent, Principal White described Respondent as “extremely calm, quiet, and stoic in response to what I was telling her the students had reported.” Principal White informed Respondent that an investigation would be conducted. On September 1, 2016, Principal White took written statements from the students, as well as Respondent, contacted her Supervisor, April Williams, and conducted a conference call with the human resources department.2/ Following the conference call, Respondent was asked to turn in her keys, escorted to her car, and placed on leave pending the outcome of an investigation into the students’ allegations. Respondent was terminated by Duval Charter effective September 13, 2016. During the investigation by the Education Practices Commission, each of the students was questioned by, and gave additional written statements to, Lisa Robinson, an Investigator with the Florida Department of Education. Administrative Allegations Petitioner’s Amended Administrative Complaint contains the following material allegations: 3. During the 2016-2017 school year, Respondent repeatedly touched students improperly when: Respondent grabbed L.C., a female eighth-grade student, by the arm and pulled her out of the cafeteria. Respondent struck K.B., a female eighth-grade student, on the head when K.B.’s head was down on her desk. Respondent grabbed D.S., a male eighth- grade student, by the jaw and turned D.S.’s head so that he was looking at her. Throughout the final hearing, Respondent’s demeanor was calm and respectful. She was patient with the students, not argumentative when she cross-examined witnesses, and respectful and courteous to both the undersigned and Petitioner’s counsel. Respondent expressed concern that some of the students conspired together and exaggerated certain events in order to get her in trouble at the school. Alleged Pulling of L.C. On August 31, 2016, L.C. and her classmates ate lunch in the cafeteria at a table close to the exit door to the stairwell. L.C. testified that, while she was getting up from the cafeteria table, Respondent “came up to me and grabbed me [by the left arm above the elbow] and pulled me through the cafeteria and up the stairs.” L.C. testified she told Respondent not to touch her and tried to pull away from Respondent, but Respondent was holding her arm too tightly. Respondent testified that she had taken her students after their lunch period upstairs to go to their next class, when another student told her that L.C. was still in the cafeteria. Respondent went back to the cafeteria to retrieve L.C., whom she found engaged in an argument with another student at the lunch table. Respondent said L.C.’s name to get her attention, but the cafeteria was too loud for Respondent to be heard. Respondent testified she touched L.C.’s arm to get her attention and told her to come with Respondent upstairs to her next class. Respondent denied pulling L.C. by the arm, but admitted hearing L.C. tell Respondent not to touch her. Petitioner introduced video footage of the cafeteria on the date in question, and had L.C. testify contemporaneously about the actions unfolding in the video. The video is of poor quality and especially grainy in the area of the cafeteria farthest from the camera--precisely the area in which the incident allegedly transpired. The date/time stamp on the video recording further obscured the undersigned’s view. The video footage is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria. At best, the video depicts Respondent approaching L.C. at the cafeteria table and L.C. leaving the cafeteria with Respondent quickly and slightly ahead of Respondent. Ms. Connolly viewed the school’s “live feed” video of the cafeteria during the school’s investigation of the incident. She testified that the live feed video was of the same view as that introduced in evidence, but had no time/date stamp. Ms. Connolly viewed, rewound, and reviewed the video a few times. In Ms. Connolly’s written statement regarding the incident, she stated, “After playing and rewinding the video, it does appear that [Respondent] does make contact with L.C.’s arm to get her to move out of the cafeteria and up the stairs.” During her testimony at final hearing, Ms. Connolly added that there was “a pulling motion,” but she could not say it was a “continual motion.” She testified, in pertinent part, as follows: What I recall seeing after playing and rewinding is that it does look like there is contact, like, that there is a pulling motion. There are spaces in the video, like I saw here, where someone may be sort of directly in the view, but I don’t know if it was continual motion. But it does look like there was a pulling initially, and a pulling towards the stairwell. * * * So the video that I watched and played at the school live feed, I watched a few times, and I do see spots where there is a pulling motion. * * * I do feel what I saw was a contact. It looked like a pulling motion initially. Again, the view, it’s hard to recall. Like, you can’t see all the way through. And then it does look like there’s still that sort of thing, contact, towards the stairs. That’s what I do remember. That is not fully what I wrote. Ms. Connolly’s testimony is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria. K.B. was the only witness claiming to have seen the incident in person. K.B. testified that Respondent “like pulled L.C.’s arm and like—not dragged her, but like pulled her up the stairs.” Later she clarified that she did not actually see L.C. and Respondent go up the stairs, but saw Respondent pull L.C. by the arm through the stairwell door. The troubling part of K.B.’s testimony is that she is one of L.C.’s cohorts, who, according to Principal White, followed the same schedule as L.C. If so, K.B. would have already been upstairs on her way to her next class at the time of the incident. Respondent testified that, at the time of the incident, “None of my students were at the table at that time. She was the only one that was left in the cafeteria. Everybody else was upstairs.” K.B.’s testimony is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria to the exit. As to Petitioner’s first allegation, the evidence supports a finding that Respondent did make physical contact with L.C. and accompanied her out of the cafeteria. The evidence does not support a finding that Respondent pulled L.C. from the table and out of the cafeteria. Alleged Striking of K.B. K.B. had her head down on her desk in Respondent’s class while Respondent was teaching from the front of the room. K.B.’s desk was in the back of the classroom. K.B. testified as follows: I put my head down and I was sleeping. And she - I don’t remember like everything that happened, but she came and like - you know, how like a normal teacher, like nudge you on the shoulder and say can you please wake up; she like hit me on my head, but not like – not hard like a fight hard, but like – kind of like where it hurted. And I text my mom and told her. K.B. did not see Respondent hit her. K.B. determined Respondent hit her because when she sat up she saw Respondent walking up the row of desks toward the front of the room. In the written statement K.B. gave to Principal White on September 1, 2016, K.B. wrote, “I had my head down in class and [Respondent] came up and hit my head and said ‘No sleeping’ and I got mad.” In the written statement K.B. gave during Ms. Robinson’s investigation, K.B. wrote, “I had my head down on the desk because I wasn’t feeling well, so [Respondent] came and hit me on my head, in the middle of it, and her hand was open, it hurted from on a scale 1-10, 10 being the worst, it was a 5.” K.B. did not see who hit her on the head. It would have been impossible for K.B. to know whether the person who hit her had their hand open or closed. K.B.’s mother testified that she received a text from K.B. during school about the incident. Ms. Brooks did not testify about the content of the text. Ms. Brooks testified that, when she came home from work, “[K.B.] just said that the teacher popped her in the back of the head to wake her up.” Ms. Brooks testified that K.B. was upset about the incident, and that K.B. was embarrassed and crying. K.B. testified that she was “kind of embarrassed because I thought everybody saw, but nobody saw.” The student witness accounts of the incident were just as conflicting as that of K.B. Student L.C. testified that she saw Respondent “walk up to K.B.” but that L.C. looked away and then heard K.B. say “don’t touch me” and saw K.B. “move her shoulder.” L.C. testified that she did not see Respondent touch K.B. However, in her statement given to Ms. Robinson, L.C. stated, “I saw [Respondent] lightly tap K.B.’s shoulder and told her to get up.” L.C.’s account was neither credible nor reliable. The most credible student witness was S.H. S.H.’s demeanor was calm, respectful, and serious. S.H. no longer attends Duval Charter and testified via video from her new school. If the students did conspire to get Respondent in trouble, as Respondent suggests, S.H. was in a position to come clean without suffering retaliation from the other students. S.H.’s credibility was bolstered, as well, by Ms. Block’s glowing description of S.H. S.H. testified that her seat in Respondent’s classroom was about three feet away from K.B. S.H. testified that K.B. had her head down on her desk and Respondent said “if your partner is sleeping” wake them up. S.H. tapped K.B., but she could not say for sure whether it was on K.B.’s head or her shoulder. K.B. did not wake up when S.H. touched K.B. S.H. testified, “And [Respondent] came over and tapped [K.B.’s] head.” In her written statement given to Principal White, S.H. wrote, “K.B. . . . was laying her head on the desk, [Respondent] stated ‘if your partner is laying on the desk give them a shove’ so I tapped K.B. Then [Respondent] came over to wake her up hitting her head. I (S.H.) was not aware it hurt her.” S.H. testified that Respondent “tapped” K.B. on the head, but wrote that Respondent “hit” K.B. on the head. At the final hearing, S.H. explained that her written statement was “a poor choice of wording.” In response to the undersigned’s request that S.H. clarify what she meant, S.H. explained, “At the time, I didn’t have such a wide vocabulary, so like – I’m assuming the only word I could use to describe what happened was a hit.” The competent, substantial evidence supports a finding that Respondent patted K.B. on the head to wake her and reengage her in the class. Petitioner alleges Respondent “struck” K.B. on the head while K.B.’s head was down on her desk. Merriam Webster defines “Strike” as follows3/: Definition of strike struck play \'str?k\; struck also stricken play \'stri-k?n\; striking play \'stri- ki?\ intransitive verb 1: to take a course: go struck off through the brush. 2a: to aim and usually deliver a blow, stroke, or thrust (as with the hand, a weapon, or a tool). b: to arrive with detrimental effect disaster struck c: to attempt to undermine or harm something as if by a blow. struck at . . . cherished notions--R. P. Warren. 3: to come into contact forcefully two ships struck in mid channel. The evidence does not support a finding that Respondent touched K.B.’s head forcefully or that she took aim and delivered a blow to K.B.’s head. Alleged Grabbing of D.W.’s Jaw D.W. was a student in Respondent’s eighth-grade ELA class. D.W. testified that he was talking in class and Respondent asked him to stop. When he did not, D.W. testified that Respondent “grabbed my face and told me to look at her when she is talking to me.” D.W. demonstrated that Respondent placed her hand on his jaw and “turned [his face] toward her.” D.W.’s testimony at the final hearing was consistent with both his written statement he gave to Principal White and the statement he made to Investigator Robinson. Both students, K.B. and I.W., witnessed the incident and testified about it during the final hearing. Their testimony was consistent with both D.W.’s testimony and his written statements. D.W. testified that he became angry with Respondent for putting her hands on him. Respondent does not deny touching D.W.’s face in an attempt to get his attention. She maintains that she spoke calmly with affirming words and was neither angry nor frustrated. On cross-examination by Respondent, D.W.’s attitude changed dramatically. D.W.’s demeanor transformed from matter- of-fact to subdued, almost shy. His tone was apologetic. On cross-examination, D.W. admitted that Respondent was, at the time of the incident, speaking words into his ear. He remembered Respondent saying “Please stop, look at me son, I don’t want you to get in trouble.” D.W. also recalled Respondent saying, “I’m trying to give you a chance to be better, I need you to show me that you can, okay?” D.W. agreed with Respondent that she was trying to change his mind about his actions in a positive way. Further, D.W. admitted on cross-examination that he did not feel as if he were in danger or that Respondent was going to hurt him. The evidence supports a finding that Respondent did grasp D.W.’s face in class and turn it so that he was facing her. D.W.’s testimony that he became angry was credible. The greater weight of the evidence supports a finding that D.W. was embarrassed by the incident occurring in front of his classmates. Intentional Embarrassment D.W. was embarrassed by having Respondent grab his face and ask him to look at her when she was talking to him in front of his classmates. Likewise, K.B. was embarrassed when she thought her classmates saw Respondent touch her head to wake her. L.C. did not testify that she was embarrassed by Respondent’s contact with her in the cafeteria. L.C. was certainly angry about the interaction, as were D.W. and K.B. The evidence is insufficient to support a finding that Respondent intended to subject the students to embarrassment or to disparage them in front of their classmates. As to D.W., Respondent’s intent was clearly to redirect the student and encourage more positive behavior. As to L.C. and K.B., the evidence is insufficient to establish that Respondent’s intent was anything other than to get the students’ attention and keep them on track.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety, and the Education Practices Commission take no action against Respondent’s certificate. DONE AND ENTERED this 8th day of February, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2018.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent left a kindergarten student, K.M., alone in her classroom on April 2, 2018, as alleged in Petitioner’s Administrative Complaint.
Findings Of Fact Based on the record and evidence presented at the hearing, the undersigned makes the following findings of relevant and material fact: Stipulated Facts Respondent holds Educator Certificate 1168653, covering the areas of Elementary Education, English for Speakers of Foreign Languages, and Exceptional Student Education (“ESE”), valid through June 30, 2021. At all relevant times, Respondent was employed as a kindergarten teacher at Sunland Park Academy, in the school district of Broward County, Florida. Evidence Presented at the Hearing Samiyeh Nasser During the 2017-2018 school year, Samiyeh Nasser (“Nasser”) was employed as a Teacher’s Assistant at Sunland Park Academy in the Broward County School district. She worked with the kindergarten classes. Nasser “pulled out” students, removing them from a teacher’s class and bringing them to her own room to provide extra help with reading, spelling, and word pronunciation. She regularly went to Leger’s classroom during first period each day, at approximately 9:00 a.m., and would take four or five students to her own classroom. She would then bring them back to their regular class to attend “specials,” which are elective classes. On April 2, 2018, when Nasser returned children to Leger’s classroom, at 10:05 a.m. that day, she noticed that the other students had already left the room, but that there was one student, K.M., there alone. When Nasser found her, K.M. was crying. When Nasser asked her why she was alone, K.M. said that her classmates had gone to physical education class (“P.E.”), and that she had been told by her teacher, Respondent, to stay in the classroom. Based on other credible evidence, K.M.’s comment to Nasser regarding having to “stay in the classroom” referred to a counseling conversation which Leger had with K.M. earlier in the morning, prior to the class leaving for P.E. She did not mention anything to Nasser about Steven Bynes (“Bynes”), a pool substitute who had assumed responsibility for the class in Respondent’s absence. Nasser opened the back door to the classroom, saw the other students at P.E., and instructed the small group of students she brought back to the classroom to join them outside. She did not see either Leger or Bynes with the students at P.E. when she found K.M. Nasser remained with K.M. briefly, hugged her to calm her down, and then left her in the room as she went on to assume her other duties. She was in Leger’s classroom a total of approximately five to seven minutes. Steven Bynes, Jr. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park Academy during the 2017-2018 school year. He provided coverage when teachers were absent or out, and no outside substitute was hired for the day. On April 2, 2018, he was instructed to cover Leger’s class while Leger attended a meeting.1 Bynes was in Respondent’s classroom for approximately 20 minutes. Leger returned to the classroom while Bynes was still there and advised him that the class had “specials.” Bynes claimed that he advised Leger that it was two minutes before the class was to go to P.E., and advised her that she “still had time” to take them there. 1 This was a meeting between Leger, the guidance counselor, and a parent mentioned later in this Recommended Order, paragraph 60 infra. He claimed that Leger did not say anything to him, and he left the classroom to return to the front office. After the fact, Bynes was told that a student had been left in the classroom, but he denied knowledge of it and denied responsibility for leaving K.M. in the classroom. He claimed he left the class with Leger. He also denied having any conversation with K.M. in the classroom. Bynes denied taking the class to P.E. and stated that when he left the classroom, he left the students with Leger.2 Nikia Ragin Nikia Ragin (“Ragin”) was the Assistant Principal at Sunland Park Academy during the 2017-2018 school year. She was told by the Principal that Nasser had reported an incident concerning a student, K.M. After speaking to Nasser, she spoke to K.M. Ragin spoke to K.M. approximately two hours after the event took place, and then reported to the Principal. Ragin was also present when Leger explained to the Principal that Bynes, not she, had taken the students to P.E. Other than Leger’s statement, Ragin found no other evidence to conclude that Bynes had taken the students to P.E. Ragin’s conclusion regarding the evidence, at that point, was misguided and affected because the school surveillance cameras that would likely show who took the students to P.E. were not operating properly.3 Leger elaborated and explained to Ragin that she was in a meeting with the guidance counselor when the students went to specials. 2 Notably, Bynes said he didn’t really remember what Leger said or did after he advised her that she still had time to take the class to specials. Curiously, after he said this, he testified that he simply “walked out of the classroom.” This description by Bynes was significantly at odds with Leger’s testimony and recollection of the same discussion. Bynes seemed vague and uncertain at times regarding the incident. Leger’s description of her encounter and discussion with Bynes when she returned, is more persuasive and credible, and is adopted. 3 The camera tapes had been reviewed by Ragin because of Leger’s claim about not taking the students to P.E. Had the surveillance cameras been working, there would have been clear images of the kindergarten hallways and other relevant areas. There were also other inoperative cameras, that if working properly, would have shown relevant views of the hallway leading to and from the office of the guidance counselor. Sharonda Bailey Sunland Park Academy Principal, Sharonda Bailey (“Bailey”), received a report from Nasser about a student in Leger’s class. She referred the matter to Ragin, and saw her speaking with Nasser and also with K.M. Bailey recalled that Bynes had been in the classroom that day to cover the class. She asked him if anything had occurred when he was in the classroom. Bynes told Bailey that Leger had returned to the classroom and said something about the students being late for specials. Bynes recounted to Bailey that he explained to Leger that they weren’t that late, that she should take them herself, and that he then walked out the front door. When she spoke with Respondent, Leger stated to her that she did not leave a student in the classroom and that Bynes was the person who took the students to P.E. Bailey also attempted to verify who took the students to P.E. through the school’s security cameras. However, because the camera system was antiquated, it had not captured or recorded what she needed to see. The security cameras glitched and froze, and the time stamp was off. In short, the cameras were not capable of adequately displaying Respondent’s location or movement in the hallways because its quality was so poor.4 4 The security videos of the kindergarten hallway and the area outside the office of the guidance counselor were requested by Leger during discovery. However, they were not provided to her and were not used or shown at the final hearing. Bailey contacted K.M.’s mother and told her that her child was left alone in the classroom while the rest of the class was taken to specials. She explained that she would investigate the incident. Because Bailey was not able to find anyone during the investigation to validate Respondent’s position that she did not leave the student behind, she issued a written reprimand to Leger. Bailey did not speak at length with K.M. about the incident, but merely asked if she was okay. Private Investigator William Miller William Miller (“Miller”) was retained by Leger’s counsel to attempt to locate K.M. He ultimately located her in Gulfport, Mississippi. He telephoned K.M.’s mother, Shirelle M. He reached her in her car on her way to pick up K.M. from school. Later that day, Miller was also able to speak directly to K.M.5 Miller asked K.M. if she remembered the incident. K.M. explained that Respondent went to a meeting, and that the class had been turned over to a substitute teacher by the name of Mr. Bynes. She told him Bynes took the class to P.E. outside the classroom. K.M. related to Miller that she told Bynes she had been bad, and that Respondent had told her she could not go outside for P.E. K.M. stated that Bynes then told her to “wait in the classroom” and he took the rest of the class to P.E. Miller testified that neither he nor K.M.’s mother provided her with any background, mentioned Bynes, or in any way suggested what information they wanted from her. Miller had work experience interviewing juvenile witnesses and testified that he “assiduously avoided” leading K.M., because they are so prone to being improperly led when questioned. 5 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her mother’s speaker phone while they were in the car together. Miller recounted that K.M.’s mother expressed surprise that K.M. recalled the name of Bynes, and assured Miller that she had not coached K.M. in any way.6 Based on his interviews over the phone, affidavits were prepared for K.M. and her mother, which documented the verbal information they had provided to Miller. The affidavits were given to K.M.’s mother. Miller explained to her that the affidavits should be their testimony, and not the testimony of either Miller or the attorney in the case. He also explained that if there were any changes that needed to be made, she should make the changes, send the affidavit back to him, and that the affidavits could be redone, if necessary. Miller asked the mother to read and go over the affidavit that K.M. was being asked to sign. Miller arranged to have a notary go to their apartment in Mississippi to have the mother and the child execute the affidavits. Before this occurred, he was able to reach Shirelle M. by telephone. She apologized and told him that the delay in executing the affidavit stemmed from the fact that she had changed jobs, and that the Gulf Coast had experienced three separate hurricanes since he had last spoken to her. Miller explained to her that he did not want it to be inconvenient and that he would make the arrangements necessary to get a notary to her to be able to notarize the affidavits. The notary was given specific instructions to tell Shirelle M. and K.M. that they did not have to sign the affidavits, and could make any changes to them that they wanted. Despite the delay in securing her signature, Miller still felt that the mother did not have any hesitation signing her affidavit. 6 K.M.’s mother had been told of the incident, but had not been told about Bynes at the time of the incident. Ruth Galliard Leger Respondent was K.M.’s kindergarten teacher at Sunland Park Academy during the 2017-2018 school year. She recalled that K.M. was a good student and they got along well. Sometime during the morning of April 2, 2018, Respondent requested an emergency meeting with the school’s guidance counselor and the parent of a male student. The male student had come in late to class that day. He became disruptive, knocking teaching items, like posters and magnets, to the floor.7 The meeting was scheduled by the guidance counselor. Respondent left for the meeting when Bynes arrived at her classroom to provide coverage. Earlier that morning, K.M. had also been disruptive. Respondent counseled her and told her that if she did it again, Respondent would take some time from her P.E., consistent with the class rules, and that she would have to stay behind in the classroom with Respondent for a few minutes of her P.E. time.8 On the day of the incident, the class had P.E. scheduled at 10:10 a.m. When Respondent left for her meeting, the class had not yet gone to P.E. During the meeting with the guidance counselor, Respondent excused herself and returned briefly to her classroom to retrieve a form that needed to be signed by those in attendance at the conference. Resp. Ex. 1. When she entered the room to get the form, Bynes was there with her students. Respondent explained to Bynes that she forgot the form, and that her meeting with the counselor and parent was not over. Respondent asked Bynes what time it was and when he told her that it was approximately 10:15 a.m., she reminded him that the class had specials at 10:10 a.m. 7 This was out character for him, prompting Respondent to request the emergency meeting. 8 Four other students had also been counseled that morning about their conduct and the consequences before Respondent went to her meeting with the counselor. Bynes said that they had only missed five minutes, and the class could still go to P.E. Respondent retrieved the form she needed, went out the front door into the kindergarten hallway, and back to her meeting. The class was in the room with Bynes when Respondent departed to go back to the meeting. However, she did not see Bynes take the students to P.E. After the meeting with the counselor and the parent, Respondent left the counselor’s office. Respondent and the student’s parent stood in the first- grade hallway talking for several minutes.9 Respondent then walked the mother to the front door of the school, where there are more cameras, and parted company with her. Leger then proceeded down the hallway back to her classroom. When she got back, she was shocked to find K.M. standing in the room by herself. When she asked K.M. why she was in the room, K.M. explained that she had remembered that Leger previously told her that she owed time from P.E. for misbehaving. As a result, she decided to stay behind in the room when the others went to P.E. Respondent did not recall telling K.M. to “stay back” from P.E. Leger told K.M. that she did not have to remain behind, that she wasn’t upset with her, and that she should have gone to P.E. with the rest of the kids. Since there were five minutes left in the P.E. class, Respondent took K.M. out to P.E. When Respondent picked up her students from P.E. five minutes later, K.M. was fine and the class went to lunch. The next day, at the end of school, Principal Bailey handed Respondent a letter advising her that she was under investigation for leaving a child unattended. 9 This hallway was covered by the same faulty security cameras previously mentioned. At her disciplinary meeting, Respondent told Bailey that she did not leave K.M. in the classroom, and that she was at a meeting with the guidance counselor and a parent at the time. To support her defense, Respondent asked Bailey for the school videos which would show her in different hallways, entering the counselor’s office, and speaking with and walking the mother to the front door when her students went to P.E. Leger later asked her first lawyer on two separate occasions to obtain the relevant videos from the Broward County School District through a Freedom of Information Act request. Resp. Exs. 12a and 12b. She wanted the security videos to be subpoenaed for this case.10 K.M. remained in Respondent’s class for the balance of the year and Respondent had a good year with her. Leger never spoke to K.M. or her mother about the incident. Shirelle M. Shirelle M. is the mother of K.M. She recalled Miller calling and speaking to her and K.M. on the speaker phone. She heard K.M. tell Miller that it was Bynes that had left her in the classroom. She heard K.M.’s entire conversation with Miller. The affidavit that K.M. signed was an accurate recitation of the phone conversation she heard between Miller and her daughter in the car. She also signed her own affidavit that accurately set forth her conversation with Miller. Resp. Ex. 8. She knew that she could make any changes to her affidavit before signing it. 10 The undersigned took administrative notice of the DOAH file, which included Respondent’s subpoena to the Broward County School District seeking the videos, the District’s response, and Respondent’s Motion to Compel seeking access to the videos. Shirelle M. was there when K.M. signed her affidavit, and read it with her beforehand. She testified that no person forced her daughter to sign the affidavit. She explained the long period of time that elapsed between the time that she got the affidavit and the time that she signed. The delay was due to her work schedule, which involved four or five jobs, since the COVID-19 pandemic. She testified that she had no hesitation executing her affidavit, and did so freely and voluntarily, since it was accurate and correct. Concerning the day of the classroom incident, she saw her daughter before speaking with the Principal when she picked K.M. up from aftercare. She did not get much detail from the Principal, who said that the matter was still under investigation. The Principal never told her that it was Respondent who left K.M. in the room. She never overheard K.M. tell anyone that Respondent had left her in the classroom. K.M. Before beginning her testimony, eight-year-old K.M. was questioned by the undersigned. She was polite, alert, and calm. She understood the oath and the importance of telling the truth. She remembered when she lived in Florida. She also recalled Respondent as her kindergarten teacher and the incident of being left in the classroom. K.M. testified that it was Bynes who left her in the classroom when Respondent was at a meeting. 11 She recalled that when Bynes arrived at the classroom, Respondent then left for a meeting. 11 The Transcript mistakenly phonetically wrote Barnes. It should have been Bynes. K.M. stayed behind when the rest of the class went to P.E. She did so because Respondent had told her earlier that morning to stay behind because of minor discipline issues with her. More specifically, as the class left to go to P.E., K.M. told Bynes that she was supposed to remain in the classroom, and Bynes said “okay” and took the remainder of the class to P.E. K.M. remained in the classroom while the class was at P.E., until Respondent returned from her meeting. When asked by Leger why she was there alone, K.M. reminded Respondent that she had previously told her to stay in the class. K.M. executed an affidavit that she read and that her mother read to her. It accurately reflected what happened. Resp. Ex. 13b. K.M. recalled speaking to a man on the phone (Investigator Miller), and told him the same thing as what she testified to in court. K.M. unequivocally stated twice during the hearing that she never told anyone that Respondent, Leger, had left her in the classroom. Nobody told K.M. what to say in the hearing, and she remembered on her own that to which she testified. K.M. liked Respondent and stated that she was “a pretty good teacher.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Administrative Complaint and the charges contained therein. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Lisa M. Forbess Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether a district school board is entitled to terminate a teacher’s employment for just cause based upon the charge that he committed misconduct in office.
Findings Of Fact Sapp is a teacher in the Broward County Public School System. At the time of the events giving rise to this proceeding, Sapp was serving as a teacher, track coach, and Athletic Director at Silver Lakes Middle School (“School”). As Athletic Director, Sapp was entrusted with a “master” key that allowed him access to most buildings and offices in the School, a privilege not available to all teachers. Most of the School’s teachers, including Sapp, were assigned a laptop computer. A teacher’s laptop was either an IBM-compatible Dell or an Apple Macintosh. The School did not have on hand a surfeit of laptops but rather just enough for most teachers to have one. Sapp’s was an Apple Macintosh. The School’s technology specialist was Julian Kuilan, who had started work in that capacity in January 2001. Among other things, Mr. Kuilan was responsible for taking care of the computers that were assigned to the teachers. On Thursday, February 22, 2001, Mr. Kuilan was in possession of a Dell laptop computer that he intended to assign to a teacher the next day. When he left work that afternoon, Mr. Kuilan stored the Dell laptop under his desk,1 where it was concealed from casual visitors, and locked the door to his office, which was situated in the School’s media center. The media center, too, was locked for the night. At around 8:00 p.m. that evening, Sapp returned to the School after a track meet. He remained on campus until all of the adults and students who were with him had left the vicinity. Then, at around 8:30 p.m., when Sapp knew that he was alone except for the custodial crew, Sapp used his master key to enter, first, the media center and, next, Mr. Kuilan’s locked office. Once he was in Mr. Kuilan’s office, Sapp located the computers hidden under the desk and picked up a Dell laptop. Sapp left Mr. Kuilan’s office with the computer and departed the media center through the back door (not the front door through which he had entered). He took the laptop to his own classroom and stashed it there. Sapp then left to go home. In the parking lot, he bumped into the School’s security specialist, Mr. Stevens, who was washing a bus.2 Sapp did not mention the computer to the Mr. Stevens. When Mr. Kuilan arrived for work the next morning, Friday, February 23, 2001, he quickly discovered that one of the laptops which had been placed under his desk the previous afternoon was gone. He promptly notified the administration of the loss. The School’s principal, Mr. Traeger, immediately initiated an investigation to determine the whereabouts of the missing computer. The police were called, as was the School’s Special Investigative Unit (“SIU”). The SIU assigned an investigator named Kathleen Andersen to the case. Meanwhile, that Friday morning, as others were trying to find out what had happened to the laptop, Sapp returned to the media center to borrow a VCR. Sapp did not mention to anyone in the media center, including Mr. Kuilan, that he had entered Mr. Kuilan’s locked office the night before and removed a computer——which, as only Sapp knew, was presently located in Sapp’s classroom. Later that day, around 3:00 p.m., Mr. Traeger convened a meeting in his office to interview persons, such as the night custodial staff, who had access to the media center and might have been on campus when the computer was taken. Sapp was summoned to this meeting because he held a master key and had been at the School after hours due to the track meet. When Sapp arrived at the principal’s office, Mr. Traeger told him that a computer was missing and inquired whether Sapp had seen anyone enter the media center on Thursday night.3 Sapp answered that he had not and was excused.4 When he left work that Friday, Sapp did not take the laptop computer home with him for the weekend of February 24-25, 2001. The computer remained in his classroom. That same weekend, Ms. Andersen (the SIU investigator) obtained data from the motion detectors in the media center. This information enabled the investigator to home in on the likely time frame during which the computer had been taken and to pinpoint the areas in which the culprit had been present. Knowing these facts would facilitate the review of the surveillance videotapes that were the product of the many security cameras located around the School’s campus——cameras that operate 24 hours a day, seven days a week. On Monday, February 26, 2001, Ms. Andersen arranged to watch the surveillance videotapes the next day.5 For his part, Sapp came to work as usual that Monday——and said nothing to anyone about the laptop he had taken from Mr. Kuilan’s office. When he left in the evening, Sapp took the laptop home and placed it in his attic. On Tuesday morning, February 27, 2001, Ms. Andersen reviewed the surveillance videos. When she did, she discovered that the cameras had captured the image of the man who had taken the computer——and it was someone she knew. Right away, Ms. Andersen recognized Sapp as being the person shown in the film exiting the media center with a laptop computer. Ms. Andersen informed Mr. Traeger, who then personally viewed the tapes. He, too, identified Sapp without difficulty. They decided that Sapp needed to be questioned right away. Sapp was attending an athletics-related off-campus meeting that morning when he received a telephone call from Mr. Traeger, who instructed Sapp to return to the School immediately. Sapp complied, and he arrived in the principal’s office around noon, where he met Mr. Traeger and Ms. Andersen. Sapp was asked whether he could provide any additional information concerning his activities on the night of February 22, 2001, that might shed light on the circumstances surrounding the disappearance of the laptop. Sapp became upset and asked that Ms. Andersen leave the room so that he could speak privately with Mr. Traeger. She left. Alone with Mr. Traeger, Sapp finally admitted that he had entered the media center the last Thursday night, although he still did not reveal that he had taken the computer. The principal asked Sapp if he was confident enough about these facts to write a statement. Sapp said that he was and wrote the following in longhand:6 When coming back for the track meet on Thursday 22nd of Feb. I open the boys locker room for the boys to dress from the track meet. After boys dress me and the girl track coach went to the back and check and see if all the kids was gone. We entered the school east side of the school. Going up the hallway. Then we stop by the teacher lounge. Then went in the west hallway. I stop by the media center on the west side for a min. The girl track coach kept walking. So I caught up with her to walk her to her classroom. We stay in the classroom for about five min then she walk out the west side to her car. We talk for a min or so. Then she left. I walk back up the hallway. I went into the teachers’ lounge. Then I came out enter the media center. I came out the back of the media center. I went into the east hallway into the locker room to pick up my books. Then I went to the classroom and check and see how things was left after the sub. Then I walk out to the park lock. Mr. Stevens was in the park lock. I spoke to him. Then his son drove up. Mr. Stevens told me that he lock his keys in the car and that why his son came back. I told him that I am going to go. I was very sleep and I would see him tomorrow. Arnie Lee Sapp 2-27-2001 Sapp’s written statement was not the whole truth and, indeed, was misleading in its omission of the material fact that Sapp had taken the computer out of Mr. Kuilan’s office. At some point in the ensuing discussion, Mr. Traeger confronted Sapp with the evidence of the videotapes and offered to let him resign if he would confess and return the computer. Shortly thereafter, Sapp confessed to Mr. Traeger (but he did not resign). After Sapp had admitted taking the computer, Mr. Traeger called Ms. Andersen back into the room. By this time, Sapp was visibly distraught and crying. He continued to make incriminating statements, such as “I’ve done something really stupid” and “I’ve let a lot of people down.” Sapp also alarmed the others present by talking about “end[ing] it all on Friday”——which they interpreted as a possible threat to commit suicide. Eventually, Sapp calmed down and assured Mr. Traeger and Ms. Andersen that he was not going to hurt himself. Notably, however, despite being asked, Sapp did not disclose why he had taken the computer, giving only the vague explanation that “personal issues” had forced him to do it. As the meeting ended, Sapp agreed promptly to return the computer. Ms. Andersen and another officer followed Sapp to his house, where the laptop was retrieved. Sapp’s Exculpatory Scenario Except as noted, the basic material facts in the above account were largely undisputed. Where the litigants mainly part company is over the veracity of Sapp’s present explanation for his actions. What follows is a brief summary of Sapp’s exculpatory scenario. Sapp claims that he “borrowed” the Dell laptop on February 22, 2001, so that a friend with good typing skills would be able to use it to prepare the program for a March 8, 2001, track meet while Sapp and this friend attended Sapp’s college reunion in North Carolina, where they were scheduled to be from Friday, March 2, 2001, to Sunday, March 4, 2001. According to Sapp, an IBM-compatible Dell was needed for this task because he was having trouble printing documents stored in the Apple Macintosh laptop that had been assigned to him. Sapp, in sum, maintains that he had a legitimate purpose for taking the computer. On the surface, Sapp’s story has, at best, a patina of plausibility, and a bit of probing wipes even that away. To believe Sapp would require the making of too many assumptions that are out of step with common sense and everyday experience—— assumptions that are, in the final analysis, incompatible with a reasonably likely hypothesis of innocence. To start, there is the manner in which Sapp acquired the laptop. The facts are that Sapp took the property at night when the campus was nearly empty; that he used a master key to open locked doors and enter another employee’s office; and that he removed the computer from a location in that office which can fairly be called a hiding place. To explain this suspicious conduct, Sapp asserts that the School’s equipment checkout policy was not always strictly followed and that he had been permitted, in the past, to borrow property without observing the formal sign-out procedures. Assuming this is true, however, there is no credible evidence that the School ever tolerated conduct similar to Sapp’s. Moreover, common sense instructs that, barring an emergency,7 a teacher having a legitimate reason to use school district property will not simply take the property by stealth but will ask, at least informally, for permission. It is, therefore, not likely that Sapp would have taken the computer as he did if his intentions were good. Next is the fact that, time and again, Sapp never mentioned to anyone that he had taken the computer, when common sense dictates that an innocent person would have done so. It is, of course, highly probable that Sapp, as a reasonable person, knew that the disappearance of a laptop computer from Mr. Kuilan’s locked office likely would cause a stir——which is why, if Sapp truly had taken the computer for the reasons he now claims, Sapp almost certainly would have told someone (probably Mr. Kuilan) at the very first opportunity on Friday, February 23, 2001. Sapp’s continued silence is inconsistent with innocence. Making matters worse for Sapp is that he remained silent even when asked by the principal on the afternoon of Friday, February 23, 2001, about suspicious activity in the media center the night before. Sapp now concedes that it was a “mistake” not to tell the Mr. Traeger the supposedly exculpatory truth that day, and clearly it was——but it was more than that. If Sapp were innocent as he now claims, common sense teaches that he would have revealed everything to Mr. Traeger then and there. Sapp’s silence at this point is not only inconsistent with innocence but also circumstantial evidence of guilt; the reasonable inference is that he was covering up a known wrong. By now, Sapp’s story is so discredited that to note that on February 26, 2001, Sapp secreted the computer in his attic seems gratuitous, but that is the incriminating fact. Of greater significance, however, is that on Tuesday, February 27, 2001, during the second meeting with Mr. Traeger concerning the missing laptop, Sapp again failed to tell the whole truth and signed a written statement for Mr. Traeger that omitted the material fact that he had taken the computer. It is nearly impossible to imagine that Sapp, if innocent, would have continued actively to conceal this fact; common sense suggests that an innocent person would have spoken up long before it became necessary for Mr. Traeger to produce the inculpatory surveillance videos. At bottom, to fit Sapp’s story to the undisputed objective facts concerning his conduct demands belief in an improbable set of circumstances that ultimately defies belief. The simpler explanation for Sapp’s conduct, in contrast, is credible and probable: Sapp stole the computer and then attempted to cover up the misdeed until, when confronted with the videotapes, he was compelled to confess. Ultimate Factual Determinations Sapp’s taking of the laptop computer on February 22, 2001, was, if not theft as defined in the criminal law, at least dishonest and hence in violation of Rule 6B-1.006(5)(a), Florida Administrative Code (employee shall maintain honesty in all professional dealings). In addition, by using the master key with which he had been entrusted as a perquisite of his position as Athletic Director to gain unauthorized access Mr. Kuilan’s office, Sapp violated Rule 6B-1.006(4)(c), Florida Administrative Code (employee shall not use institutional privileges for personal gain or advantage). Sapp committed separate violations of Rule 6B- 1.006(5)(a), Florida Administrative Code, when he knowingly concealed material information from his principal on February 23, 2001, and again on February 27, 2001. Sapp violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), when, on February 27, 2001, he tendered a signed, written statement to Mr. Traeger that omitted material facts and was, as a result, false and misleading. Sapp’s misconduct, which violated several principles of professional conduct as noted above, also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as acts of dishonesty and fraud necessarily demonstrate a failure to sustain the “highest degree of ethical conduct.” Sapp’s violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. Contrary to Sapp’s argument, the evidence amply supports this finding. Indeed, Sapp’s own testimony, in which he admitted having breached the confidence and trust that had been reposited in him as a teacher and Athletic Director, was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Further, as a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion. Yet, as Sapp admitted at hearing, if a student athlete had engaged in conduct similar to his own, that student would be dismissed from the athletic program and probably expelled from school. Obviously, having committed acts that would subject a student to severe repercussions, Sapp’s effectiveness as a role model has been seriously compromised——perhaps (and hopefully) not irreparably, but grievously nonetheless. Based on the above findings, it is determined that Sapp is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Sapp’s suspension without pay effective September 11, 2001, and discharging him from further employment in the Broward County Public Schools. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of September, 2002.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 January, 2018.
Findings Of Fact The Respondent holds Florida teaching certificate 327703 covering the area of Drafting and Technical Construction. During the 1985-1986 school year, the Respondent was employed as a teacher at Lyman High School in the Seminole County School District. (T-85) Jilliana Holt attended Lyman High School as a senior during the 1985- 1986 school year. (T-84) At the time, she was 17 years old. (T-84) Jill met the Respondent in the fall of 1985 through a friend of hers who was a student in the Respondent's class at the time. (T-85) Although the Respondent did not teach any of Jill's classes, she saw him at school everyday when she visited her friend, Darla Franklin, on her way to class (T-86, Petitioner's proposed Finding #3.) Jill came to know the Respondent through casual conversation. (T-86) Eventually, they found that they shared a common interest in motorcycles. (T- 86) The Respondent owned a motorcycle. (T-86; P-11) In January 1986, the Respondent invited Jill to take a ride on his motorcycle with him. (T-87) In late January 1986, the Respondent took Jill out for a day-long motorcycle ride. (T-89) The trip took place on a Saturday, while Jill's mother was at work. (T-89) There was no predetermined destination. (T-89) After picking Jill up at her house on Saturday morning, they eventually arrived in Clermont between 12:00 noon and 2:00 P.M. (T-90) There they stopped at Quincy's Restaurant where they discussed some of Jill's personal and family problems. The Respondent indicated to her that he had taken some psychology courses in college and that he would work with her to help her with her problems. (T-90) The Respondent suggested that they go to a motel where they could sit and talk. Jill demurred, but the couple ended up at a nearby Howard Johnson's motel. (T-91, Petitioner's proposed findings #8 and 9.) Jill and the Respondent engaged in sexual relations at the motel. (T- 92) Following their trip to Clermont, the Respondent and Jill began to see each other in a dating relationship. (T-93) Fellow students, Sam Frazier and Darla Franklin, covered for Jill with her parents so that she could see the Respondent secretively. (T-94-97) On one occasion, Sam picked Jill up at her home ostensibly to go on a date. Instead, he dropped her off to meet the Respondent and later picked her up and took her home after she saw the Respondent. (T-94, 95) On another occasion, Darla covered for Jill one weekend when Jill accompanied the Respondent on an overnight boating trip. Jill was supposed to be spending the night with Darla when in fact she accompanied the Respondent to Port Canaveral and spent the night alone with the Respondent in his boat on the Atlantic Ocean. (T-95-99) The Respondent engaged in sexual intercourse and oral sex with Jill while on his boat. (T-98) This trip occurred near the end of March or the first of April 1986. (T-96) Jill visited the Respondent at his home on two occasions. (T-99) On one occasion, they had sexual intercourse in the Respondent's bedroom. (T-100) The Respondent took Jill to the Diplomat Inn in Orlando on two occasions. The first occurred in February 1986. (T-106; P-2) After arriving at the hotel on the Respondent's motorcycle (T-106; P-2) the Respondent obtained a room. While there, the Respondent engaged in sexual intercourse with Jill. (T-106) The Respondent took Jill to the Diplomat Inn on a second occasion in his pickup truck. (T-107; P-3) The Respondent was not feeling well when they arrived, so no sexual activity took place beyond hugging and kissing. (T-107) (Petitioner's proposed finding of fact #16.) On Valentines Day 1986, the Respondent met Jill and Darla Franklin at a Quincy's restaurant for dinner. The Respondent gave Jill a teddy bear with a golzd bracelet around its neck. (T-109; P-5, P-9) Later that evening Jill saw the Respondent at the school's curriculum fair. (T-109) When the Respondent returned to his classroom, Jill hugged, kissed and thanked him for the presents. (T-110) (Petitioner's proposed finding #17.) In addition to engaging in sexual intercourse in hotel rooms, his home and his boat, the Respondent drove Jill to an orange grove on a number of occasions where sexual intercourse and/or oral sex took place. (T-119, 120) On another occasion the Respondent took Jill to a wooded area where they had sexual intercourse. (T-113) Afterward, the Respondent gave Jill a key chain with his initials on it. (T-112) In addition to the gifts previously mentioned, the Respondent gave Jill a computer disc box and several computer discs for use in her computer class at school. (T-114) He also gave her some scuba gear for her use when he took Jill on a diving trip to Cow Sink. (T-114) (Petitioner's proposed finding #18.) The Respondent wrote Jill four short notes which he gave to her at school. (T-116; P-4) (Respondent's proposed finding #14.) The parties developed a strong relationship between themselves and Jill believed that she was in love with Respondent. (T-128, 133, 134) While the relationship was ongoing, the Respondent told Jill that he loved her, that he planned to divorce his wife and that he wanted to marry her and move to West Palm Beach. (T-102, 104, 105) The Respondent resigned from his employment with the Seminole County School Board on April 30, 1986. (T-151) (Petitioner's proposed finding #22) After Jill's disclosure of her relationship with the Respondent to law enforcement officers, the relationship quickly became known at Lyman High School and in her community. (T-124, 148; P- 10) (Petitioner's proposed finding #23) The resulting publicity put a great deal of stress on Jill's relationship with her family (T-125) and her fellow students. (T-124) She was ostracized at school. (T-124) Her graduation was put in jeopardy. (T-125) She was embarrassed at her senior prom. (T-125) Students booed her during graduation exercises at the end of the school year. (T-126) (Petitioner's proposed finding #24.) Dr. Hortense Evans testified in her expert opinion that the Respondent's effectiveness as an employee of the Seminole County School Board was seriously reduced as the result of his relationship with student Jilliana Holt. (T-145, 146) In her expert opinion, children are sent to school to receive an education, not to be sexually abused or exploited. (T-147) Respondent's conduct violates the trust which parents place in the school system to care for their children properly and professionally.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), F.S., and rules of the State Department of Education. DONE and RECOMMENDED this 2nd day of October, 1987, in Tallahassee, Florida. MARY CLARK 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 2nd day of October, 1987. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John A. Baldwin, Esquire Baldwin & Baum 7100 South Highway 17-92 Fern Park, Florida 32730 Karen Barr Wilde Executive Director Education Practices Commission Department of Education Room 418, Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s educator?s certificate, and if so, the nature of the sanctions.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department?s rules establishing standards of teacher conduct. Respondent holds an educator?s certificate, No. 1085138, issued by the Florida Department of Education. At all times material to this proceeding, Respondent was a music teacher at Ed White High School in Duval County, Florida. Respondent graduated from Florida A & M University in the Spring of 2008 with a bachelor?s degree in music education. Respondent was first employed by the Duval County School Board in February, 2008, immediately before his graduation from Florida A & M, as a substitute teacher at Ed White High School. He taught as a full-time music teacher during the 2008-2009 school year, until his resignation on April 6, 2009. Respondent currently holds a teacher certification from the state of Georgia, and teaches music at Terrell High School in Atlanta, Georgia, a position that he has held for two years. Mr. Jackson had a good reputation as a teacher. There was no allegation of any prior disciplinary history involving Respondent. One of the resources provided to Respondent as a teacher at Ed White High School was a school-issued laptop computer. That computer was Respondent?s only school-issued computer, as the school did not provide him with a desktop computer. There was no restriction against teachers taking school-issued laptops home for work-related purposes. Respondent occasionally took his school-issued laptop home with him. He also stored music files on his school-issued laptop after his personal laptop was stolen from the school. Respondent had an account with the school, which included access to the internet. In order to have that account, Respondent was provided with a copy of the Duval County Public Schools Staff Network and Internet Acceptable Use and Security Policy and Guidelines (AUP). Among the guidelines were the following: All Network Usage is Subject to Monitoring The Internet and other networks are public places. There is no reasonable expectation of privacy. The district reserves the right to monitor all traffic on the network and review all files stored on or transmitted through its computer system. * * * Appropriateness of Materials Access to the internet provides opportunities for staff and students to explore thousands of resources outside of the walls of their school or office. The district acknowledges that fact that inappropriate materials exist and will do everything it can do to actively avoid them, including the use of filtering software. The district has implemented technology protection measures that filter internet access to block visual displays that are obscene, pornographic, or harmful to minors, but this technology is not 100% effective. No software can filter out all of the materials that are unacceptable for academic purposes and it should be clearly understood by all staff and all students and their parents/guardians that intentional access to such material, in any form, is strictly forbidden. The network is designed to achieve and support the district?s business and instructional goals and any information that does not support the goals is to be avoided. The district wants staff and students to use this valuable tool, but at the same time cannot condone the use of inappropriate information or unauthorized access. If a staff or student unintentionally accesses such information while doing legitimate research, he/she should contact the teacher or the person responsible for technology at his/her site for appropriate action. It is the responsibility of all users, staff, and students that at all times while in the Duval County Public Schools, the computers, the network, and the internet are being used primarily for educational or district business purposes. * * * Network Security Passwords The person in whose name a network account is issued is responsible at all times for its proper use Passwords must never be shared. To share a user ID or password exposes the authorized user to responsibility for actions the other party takes with the password and ID * * * Appropriate Behavior Staff members are responsible for appropriate behavior on the district?s computers, business systems, network, and the internet and should adhere to all relevant federal, state, and local laws; district policies, guidelines, standards, procedures and controls; and the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida. Users who disregard the federal, state, and local laws and codes, district policies, guidelines, standards, procedures and controls may have their privileges suspended, revoked, and disciplinary action taken against them, including termination. Users granted access to the network through the district?s computer systems assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district?s guidelines. Employees should only use the information from business systems or the network in the performance of their duties/responsibilities with the school system unless that is a direct responsibility of the employee. The district does not sanction any use of its computers or the internet that is not authorized by or conducted strictly in compliance with this policy and the district?s guidelines, standards, procedures, and controls. Users who disregard this policy and the district?s guidelines, standards, procedures and controls may have his/her privileges suspended or revoked and disciplinary action taken against them. Users granted access to the network through the district?s computers assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district?s guidelines, standards, procedures and controls. The district retains the right to remove from its information systems any material it views as offensive or potentially illegal. The district declares unethical and unacceptable behavior as just cause for disciplinary action, the revocation of network access privileges, termination and/or the initiation of legal action for any activity through which an individual: uses the district?s computers and/or network for illegal, inappropriate, or obscene purposes, or in support of such activities * * * b. Obscene activities shall be defined as a violation of generally accepted social standards for use of a publically owned and operated communication vehicle Respondent acknowledged receipt of the AUP by electronic signature. Respondent?s laptop computer was password-protected, meaning that no one other than Respondent could access the school network or any computer files without having his password. As a teacher, Respondent had access to certain websites that were blocked to students, most notably YouTube. Respondent provided his password to three or four trusted students to complete online classwork, or to view videos of other bands on YouTube in preparation for their end-of-year, spring concert. Although sharing password information with students is prohibited by the AUP, and student access to the internet is conditioned upon the Duval County Public School employee obtaining signed parental consent, those potential violations were not pled in this case. In the spring semester of 2009, James Culbert, as part of his weekly review of the school district?s internet content filter system, determined that Respondent was accessing, or attempting to access, inappropriate internet sites through his school account, or was using search terms that the school district had determined to be inappropriate for use on the school district system. Mr. Culbert reviewed the internet access logs, and prepared a full internet-use report for Respondent?s account for the period from March 2, 2009 to April 6, 2009. The report consisted of 530 pages of internet history, and included every internet search performed using Respondent?s account during that period. Those searches included educational and other non- restricted sites, and the inappropriate sites that form the basis of the Administrative Complaint. The internet-use records reflected access or attempted access to inappropriate, pornographic materials through Respondent?s account on five occasions from March 12, 2009 to March 31, 2009. Contemporaneously with Mr. Culbert?s system analysis, Mr. McCallum accessed Respondent?s computer, apparently by remote means, and determined that it contained downloaded video files that were pornographic in nature. On April 6, 2009, Mr. Culbert and Mr. McCallum met with Ed White High School Principal Jim Clark to advise him of the results of the investigation. Principal Clark and Mr. Culbert then went to the band room at approximately 11:20 a.m., during Respondent?s planning period, and asked Respondent to accompany them to the principal?s office. The classroom visit was intentionally discreet so as not to call attention to the situation. Respondent was joined in the principal?s office by Principal Clark, Mr. Culbert, and Mr. McCallum. The school officials proceeded to provide Respondent with the substance of the allegations against him. During the investigative interview Respondent acted in a cooperative and gentlemanly manner. When confronted with the conduct that gave rise to the allegations in this proceeding, Respondent voluntarily resigned his position with the Duval County School Board. Respondent knew that the use of his school-issued laptop computer to access pornography was prohibited by the AUP, having signed an acknowledgement that he had received, read, and understood the policy. In addition, each time a teacher logs onto a school-issued computer, a banner page appears warning the teacher against inappropriate use, instructing that all use may be “monitored, intercepted, recorded, read, copied, or captured,” and advising that school personnel have no expectation of privacy as to any use of the system. Nothing in the record suggests that Respondent tried to disable the District?s computer and internet protection, downloaded any program to circumvent the District?s filtering software, or took any steps to disguise his actions. Internet Searches The only direct evidence of Respondent accessing or attempting to access inappropriate websites was for the following dates and times: March 12, 2009 at 7:33 a.m. - “google.com” and “youtube.com.” March 17, 2009 at 12:06 p.m. - “live.com.” March 18, 2009 from 11:37 to 11:46 a.m. and 11:52 to 11:53 a.m. - “live.com,” “msn.com,” and “google.com.” March 23, 2009 at 10:46 to 10:49 a.m. - “google.com” and “youtube.com.” March 31, 2009 from 6:37 to 6:43 p.m. - “excusivepussy.com,” “blackcrush.com,” “live.com,” and “RUDE.com.” There is nothing inherently improper about accessing Google, YouTube, or msn.com. Rather, it is the search terms used that form the basis for the complaint. Those search terms, though not inherently graphic, were sufficient to support a finding of intent to access inappropriate content. As part of his forensic investigation, Mr. Culbert retrieved JPEG files from the temporary internet files on Respondent?s computer. The files consisted of photographic images of pornographic activity, and were created between 6:37 to 6:43 p.m. on March 31, 2009. Thus, I find the evidence to be clear and convincing that Respondent accessed pornographic materials on his school-issued laptop computer during that period. March 30 through April 3, 2009 was spring break. The “Material Allegations” alleged in the Administrative Complaint indicate that Respondent?s access of the inappropriate materials during school hours was material, and constitute the allegations of misconduct that Respondent must answer to. Since the access on March 31, 2009, occurred over spring break and beyond regular school hours, the access on that date does not form the basis for a violation. The fact that inappropriate images were in temporary internet files is not evidence that Respondent downloaded any images, or had the intent to store those images on his computer. It is common knowledge that computers keep track of information that passes through them without any action on the part of the user. The evidence shows that to be the case here. Thus, although Respondent accessed the images on March 31, 2009, outside of school hours, there is no evidence that he intended to maintain such images in a manner that could be reasonably accessed by students. During the six-minute period on March 31, 2009 in which inappropriate websites were accessed or had attempted access, the internet use report shows hits on “scutheti.com,” which is a malicious code/virus. The malicious code/virus first manifested itself at 6:37 p.m., contemporaneously with the first hit on the “RUDE.com” website, which was likely the infecting vehicle. Based on the uniform sequence of access to two of the more graphically-named websites following connection to “scutheti.com,” it is clear that the sites were interacting with each other, and that “scutheti.com” was trying to send tracking information to those sites. The only plausible way that those sites could have been accessed with the depicted frequency and regularity during that six-minute period was through the actions of a malicious application, rather than by action of Respondent. Thus, I find that Respondent did not access or attempt to access those graphically-named websites listed on the first three pages of the internet-use report. The evidence of record contains no temporary internet files or downloaded images of pornographic materials for the March 12, March 17, March 18, or March 23, 2009, instances of access or attempted access to inappropriate materials. Each of those dates was a school day as shown on the 2008-2009 District Calendar. Given the lack of stored images in the temporary internet files for those dates, it is more reasonable than not that the school district?s internet filter worked as designed, and prevented access to those sites. That finding is bolstered by the fact that it was the blocks of pornographic type websites that brought this matter to the attention of the school district. Mr. Culbert testified that the website screen shots that he reviewed to determine the nature of the sites identified from the internet filter report were not retrieved from Respondent?s computer, but were rather obtained during his investigative foray to those sites. Those screen shots do not constitute clear and convincing evidence that Respondent successfully accessed any inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009. There is no direct evidence that the access or attempted access to inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009 occurred while students were in the classroom. Nonetheless, Respondent suggested that the access to inappropriate sites could have been the result of students surfing the internet on his laptop computer while unattended. It is plausible that students to whom Respondent provided his ID and password could have accessed inappropriate content while using his computer. However, there is neither an allegation nor proof of that having occurred. Regardless, the AUP made it clear that Respondent bore responsibility for unacceptable use in the event he chose to share information, a policy that is reasonable and appropriate. Video Files During his inspection of Respondent?s school-issued laptop computer, Mr. Culbert discovered five video files stored on the computer?s hard drive that depicted graphic sexual conduct between adults. The files range from 18 to 34 minutes in length. The evidence indicates that the files were downloaded on March 31, 2009 from 9:45 to 9:46 p.m., and on April 1, 2009 from 3:20 to 3:26 p.m. At some time prior to the incidents that are the subject of this proceeding, Respondent and other teachers at Ed White High School, were asked to clear their computers of personal files to allow for system work. Respondent had thousands of mp3 music files on his school-issued computer. Use of the computer for that purpose was not identified as being contrary to the school?s acceptable-use policy. In order to clear his computer, Respondent loaded his mp3 files onto a series of personal “jump drives.” After being cleared to do so, Respondent reloaded his files from the jump drives back onto his school-issued laptop computer hard drive. Respondent testified that he did not download any video files to the computer from the internet, and had no recollection of having intentionally loaded such files from any other source. He could only conclude that the video files were stored on one or more of the jump drives, and were downloaded with the mp3 files without the specific intent to do so. His testimony on that issue is both plausible and credible. Thus, the greater weight of the evidence demonstrates that the download of the video files was inadvertent and unintentional. It does appear that Respondent did, while still on spring break, access two of the video files on April 2, 2009, at 9:33 a.m. Access on that day was not during school hours. However, such access reveals that Respondent became cognizant of their presence on the laptop computer, and should have led him to delete them from the school-issued computer. The access log further indicates one of the videos was accessed at 9:43 a.m. on April 6, 2009, a school day. However, prior to Mr. McCallum and Mr. Culbert?s 11:00 a.m. meeting with the principal on April 6, 2009, and prior to their taking physical control of the computer, Respondent?s internet attempts were checked and “[i]n addition, a further check revealed that Jackson had downloaded pornographic videos onto his district assigned laptop.” Thus, it appears that remote access to Respondent?s computer was obtained by the investigators prior to their 11:00 a.m. meeting. After that “further check,” Mr. McCallum drove to Mr. Culbert?s office, picked him up, and they drove together to Ed White High School. Given the sequence and timing of events, it is more likely than not that the April 6, 2009, video access was made as part of the investigation. In any event, the evidence is not clear and convincing that Respondent accessed the video file at 9:43 a.m. on April 6, 2009. Respondent denied ever having accessed or played the videos during school hours as alleged in the Administrative Complaint. The greater weight of the evidence supports his denial. DVD disc When the school officials took possession of Respondent?s school-issued laptop on the morning of April 6, 2009, they discovered a DVD in the computer?s DVD drive. The DVD consisted of videos of adults engaged in a variety of sexual acts. The DVD was pornographic in nature. The record is devoid of evidence as to when the DVD was inserted into the computer drive. Although Respondent disclaimed knowledge of how the DVD made it into the computer drive, the evidence is clear and convincing that it was placed into the computer drive while the computer was in Respondent?s control. Respondent is responsible for his school-issued laptop computer, and its contents are fairly attributable to him. There is no evidence that the DVD was ever accessed or played during school hours, or that it was ever viewed by or shared with any student, teacher, or staff member of Ed White High School. The materials that were found on Respondent?s computer, either as internet images, video files, or the DVD, all depicted sexual activity between consenting adults. None of them depicted sexual activity involving minors. There is no evidence that the materials were “obscene,” though they are clearly pornographic. In that regard, Ms. Young was twice asked her opinion as to whether the materials were “obscene or pornographic,” and her response on both occasions was that they were pornographic. There is no evidence that the materials were illegal or that they involved criminal activity. While the materials are without question offensive to some, accessing and watching images of adults engaged in sexual activity, in privacy, does not involve “the idea of inherent baseness or depravity in the private social relations or duties owed to man or by man to society.” Neither the conduct alleged, nor the investigation or interview of Respondent was known to anyone outside of the principal and the two school board employees involved in the investigation. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent?s access or attempted access of inappropriate material from his school- issued laptop. His conduct was not, in any sense of the term, “notorious.” The fact that Respondent?s school-issued laptop computer was used to access, store, or hold pornographic images in various forms and on various media did not have any adverse affect on Respondent?s effectiveness as a teacher at Ed White High School.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered: dismissing Counts 1 and 2 of the Administrative Complaint; finding the Respondent guilty of the violations alleged in Counts 4 and 5 of the Administrative Complaint and, as a result, also guilty of the non-separate violation alleged in Count 3 of the Administrative Complaint; imposing a suspension of the Respondent's educator certificate for a period of 90 days; imposing a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case; requiring that Respondent take and pass a three-hour, college-level course in ethics during the probationary period; and imposing a fine of $250 to be paid by the end of the probationary period. DONE AND ENTERED this 18th day of August, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2011.
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board, for five days for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times pertinent to this case, Respondent was employed as a behavioral specialist teacher at the Sunset School ("Sunset"), a public school in Broward County. Sunset is an educational center servicing emotionally and behaviorally disabled students ranging in ages from 5 to 22, kindergarten through twelfth grades. The program at Sunset is unique in its behavior management system and mental health component which include academic, vocational, therapeutic, and behavioral interventions. On December 5, 2011, Respondent notified Principal Cottrell that she intended to seek a restraining order against Sunset student, A.W. In the dialogue that followed, Principal Cottrell requested that, when completed, Respondent provide him a copy of the court documents.1/ On that same date, Respondent presented to the Clerk of the Court for the Circuit Court of Broward County, Florida, with the intention of filing a Petition for Injunction for Protection Against Repeat Violence ("Petition") against A.W. Respondent, who was not represented by counsel, obtained the blank Petition from a clerk, and filled in the required information by hand. Upon completion, Respondent presented the Petition back to the clerk. The clerk then inquired as to whether Respondent had any additional documentation that she wished to attach to the Petition. It is undisputed that Respondent then attached four documents to the Petition. Specifically, Respondent attached 1) a Sunset School Code Report dated December 5, 2011, detailing a behavioral issue concerning A.W.; 2) a Sunset School Incident report dated December 5, 2011, again detailing a behavioral issue concerning A.W.; 3) a Sunset School Incident report dated November 1, 2011, documenting a behavioral issue concerning A.W.; and 4) a Student Accident/Illness Form dated November 1, 2011, documenting a physical confrontation by and between A.W. and Respondent. The Circuit Court issued a temporary injunction against A.W. precluding A.W. from knowingly coming within 100 feet of Respondent's vehicle and ordering the parties to refrain from contact while at Sunset. The parties were notified to appear and testify at a hearing regarding the matter on December 14, 2011. Respondent, as requested, provided Principal Cottrell with a copy of the Petition; however, the attachments were not included in the copied material. After being served with the temporary injunction, A.W.'s mother notified Principal Cottrell and complained, inter alia, that A.W.'s records had been attached to the same. In response to the parent complaint, on or about December 8, 2011, Principal Cottrell submitted a personnel investigation request to the School Board of Broward County Office of Professional Standards and Special Investigative Unit ("SIU"). The investigation request alleged that Respondent had committed Family Educational Rights and Privacy Act ("FERPA") and Code of Ethics violations. On or about December 14, 2011, the Board filed a Notice of Special Appearance and Motion to Seal Confidential Records in the underlying case. The judge granted the unopposed motion, concluding the records were confidential pursuant to section 1002.221(2)(a), Florida Statutes and "FERPA regulations," and ordered the records sealed. The previously requested SIU investigation was initiated on or about January 9, 2012. Upon completion, the matter was referred to the Professional Standards Committee ("PSC"). The PSC found probable cause that Respondent had committed misconduct in violating Board Policy 5100.1, and recommended she serve a suspension. Thereafter, the Superintendent of Schools reviewed the recommendation of the PSC, concurred, and recommended a five-day suspension. Finally, the Broward County School Board approved the recommended suspension. The documents Respondent attached to the Petition were A.W.'s educational records. Said records included personally identifiable information of A.W. obtained in the course of professional service. The parties stipulate that Respondent did not have the authorization or consent of A.W., A.W.'s parents, or Sunset to attach A.W.'s educational records to the Petition. Prior to the 2011-2012 school year, Respondent attended a preplanning conference wherein the teaching staff was advised of current information related to the Health Insurance Portability and Accountability Act (HIPPA), FERPA, federal and state law, and Board policies. Respondent also acknowledged receipt of the 2011-2012 Staff Handbook and the Code of Ethics. Moreover, Respondent signed an Employee Confidentiality Agreement regarding HIPPA. Additionally, the Board policy concerning student record confidentiality is published, maintained, and available to the teaching staff. Respondent conceded, as she must, that she was aware of the obligations as a behavioral specialist at Sunset to maintain the confidentiality of student educational and health records. Notwithstanding, Respondent credibly testified that, at the time, she believed the confidentiality requirements of said records would be maintained in the court proceeding. Principal Cottrell opined that Respondent's conduct impaired her effectiveness. His testimony on this point is set forth in full, as follows: Q. Does the fact that these records were disclosed by Ms. Finnk impair her effectiveness to you – her effectiveness as a teacher to you within the system? A. Within her capacity at Sunset School or in any capacity at Sunset School when I am the administrator responsible, absolutely. I need to know that each and every team member at Sunset, each and every employee is responsible and knowledgeable on confidentiality and follows it without question. The undersigned finds that the above-quoted testimony is insufficient to support a finding that Respondent's conduct impaired her effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 18th day of June, 2013.
