The Issue Whether Respondent committed the violations alleged in the Petition for Suspension Without Pay and Dismissal from Employment, as clarified at hearing, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida (including, among others, H. L. Watkins Middle School (HLWMS)), and for otherwise providing public instruction to school-aged children in the county. The School Board has entered into a collective bargaining agreement with the collective bargaining representative of its instructional staff. Pursuant to Article II, Section M., of that agreement, the School Board "has the burden to prove each and every charge by clear and convincing evidence" in disciplinary proceedings such as the instant one.2 At all times material to the instant case, Respondent was employed as an annual contract teacher by the School Board. The last day for which she was paid by the School Board was March 3, 2010. From March 4, 2010, until June 4, 2010, Respondent was under suspension (without pay) pending the outcome of these disciplinary proceedings. By letter dated March 22, 2010, Respondent was advised by the School Board's Chief of Human Resources that she would not be "reappointed" and that, as a result, her employment with the School Board would terminate "on the last day of [her] current contractual period" (which was June 4, 2010). During the 2007-2008 and 2008-2009 school years, Respondent taught Spanish at HLWMS (to seventh and eight graders during the 2007-2008 school year; and to sixth, seventh, and eighth graders during the 2008-2009 school year). Respondent was responsible, not only for the delivery of instruction to her students, but also for the management of her classroom. Furthermore, she was expected to be a "role model" for her students and to conduct herself accordingly, particularly when on campus. At all times that Respondent was teaching at HLWMS, Ann Wark was the principal of the school, and Respondent's department head was Ann Panse. In each of the two annual evaluations Ms. Wark gave her, Respondent received an "overall" rating of "satisfactory" and was rated "acceptable" in each of the 15 performance categories listed on the evaluation form. In the "comments" section of the 2007-2008 school year evaluation, Ms. Wark wrote: Beth has been such a positive addition to the Watkins Team. She does a great job working with her students. She is also a wonderful team player, assisting others whenever needed. The "comments" section of the 2008-2009 school year evaluation (which Ms. Wark signed on May 13, 2009) contained the following remarks made by Ms. Wark: Ms. Stuglik is a very creative teacher. She always has detailed lesson plans that are effectively presented in the classroom. Respondent was a 22-year-old beginning teacher when she arrived at HLWMS in August 2007. She and her husband had just moved from Indiana, away from the family3 and friends who comprised her "support system." Aside from her husband (who was not supportive of her decision to teach at HLWMS),4 Respondent was not close with anyone at the school or in the area. Respondent's classroom her first year at HLWMS was the "chorus room," which was located in a building (Auxiliary Building) that was separate from the main school building. There were only two other teachers with classrooms in the Auxiliary Building (which also housed the school's cafeteria): an ESE teacher and a band teacher. The ESE teacher was infrequently in her room, having one class there every other day. The remainder of her teaching time was spent servicing the school's exceptional education students in their general education settings. The band teacher was Heath Miller. Mr. Miller taught his students in the "band room." Mr. Miller's classroom (the "band room") and Respondent's classroom (the "chorus room") were connected by an unoccupied office. Mr. Miller was a popular and "well respected" member of school's instructional staff, as evidenced by the multiple "teacher of the year" awards he had received. Before classes started that school year (the 2007-2008 school year), during orientation, Respondent was told by other teachers that Mr. Miller "was the go-to guy; that if [Respondent] ever needed help with students, [Mr. Miller] was the guy to see; that he was just absolutely wonderful." Acting on this advice, Respondent sought out Mr. Miller's assistance on various occasions, and he became her trusted, informal teaching mentor (albeit one without any supervisory authority over her). Over a period of approximately a month, Respondent's relationship with Mr. Miller, which began as a purely professional one, evolved into a sexual relationship, against Respondent's will. From the end of September 2007, until sometime in November that year before the Thanksgiving break, Mr. Miller and an unwilling Respondent engaged in sexual intercourse a handful of times in a large storage closet in the "chorus room." These incidents (numbering approximately three or four altogether) occurred during the morning (sometime between 8:45 a.m. and 9:30 a.m.) before classes started.5 On each occasion, over Respondent's verbal protestations, Mr. Miller, who was "very muscular" and physically stronger than Respondent, forcefully maneuvered Respondent to the desired location in the closet, undid her clothes, and then directed her what to do. At no time did Mr. Miller strike Respondent, nor did he make any express verbal threats of harm to Respondent if she resisted his advances. Respondent, however, did not know what Mr. Miller would do to her if she did resist. She therefore complied with Mr. Miller's demands. Respondent did not tell anyone about these nonconsensual sexual encounters with Mr. Miller until approximately a year and half later, on April 27, 2009, when she was interviewed a second time during the "School Police investigation" described in the Petition. Respondent's post-encounter silence was the product of her wanting to forget about what had happened, coupled with her conviction that, if she did report what had happened, no one would believe her because Mr. Miller was so "well respected." Notwithstanding what Mr. Miller had done to her, Respondent continued to be "cordial" towards him, acting as if, at least to the casual, lay observer, nothing untoward had happened. In addition to conversing in person with Mr. Miller during the course of the school day, Respondent communicated with him by text and telephone, and several times even socialized with him outside of school (but always in a group situation where there were others present). Respondent's conduct following Mr. Miller's transgressions against her (as described above) was not atypical for a sexual assault victim.6 During the 2007-2008 school year and, to a lesser extent, during the 2008-2009 school year (when Respondent occupied the classroom in the Auxiliary Building that the ESE teacher had been in the year before7), an unaccompanied Mr. Miller, on occasion, came into Respondent's classroom while she was teaching a class (towards the end of the period,8 when the students were working, independently, on class assignments) and, with Respondent's permission, removed students from her class, a practice not prohibited by any School Board rule or policy. The students he removed were all female band students. Respondent would let the students go with Mr. Miller only if they were done with their work.9 The students would be gone from Respondent's class for approximately ten to twenty minutes. Allegations were subsequently made that Mr. Miller had (at various unspecified times) engaged in sexual misconduct with three of the students he had removed from Respondent's class (plus another student whom Respondent did not teach), and criminal charges were filed against Mr. Miller based on these allegations.10 Mr. Miller is currently in jail and is being held without bond on these criminal charges. At the time of the removals, however, Respondent had no knowledge, nor even any idea, that Mr. Miller was engaging in any inappropriate conduct with students. She believed (based on what Mr. Miller had told her when he came into her room to get the students) that he was taking them from her class so they could participate in band-related activities.11 Mr. Miller was arrested on April 20, 2009.12 The following day, School Police Detective Vincent Mintus interviewed Respondent as part of his ongoing investigation of the allegations that had been made against Mr. Miller. During this April 21, 2009, interview, Respondent was not forthright with Detective Mintus. She was asked about her relationship with Mr. Miller and, in response, failed to disclose that there was a sexual component to the relationship. Following the interview, Detective Mintus discovered information causing him to question whether Respondent had been entirely truthful with him. He therefore made arrangements to interview Respondent again. This second interview was conducted on April 27, 2009. When told by Detective Mintus that he had reviewed text messages and telephone records and, based upon this review, had doubts concerning how honest she had been during her April 21, 2009, interview,13 Respondent acknowledged that, contrary to what she had intimated in her previous interview, she had had a sexual relationship with Mr. Miller. She added, however, that this relationship had been a nonconsensual one in which she had not been a willing participant. The interview was cut short when Respondent asked for a union representative to be present. Following her April 27, 2009, interview, Respondent, with Detective Mintus' assistance, made contact with the Palm Beach County's Victim Advocate's Office, through which she subsequently received therapy and counseling enabling her to better deal with the emotional and psychological effects of having been sexually victimized by Mr. Miller. Upon being advised by Detective Mintus of what Respondent had related to him during the April 27, 2009, interview, Ms. Wark went to see Respondent. She tried to console Respondent and offered Respondent her support. Aided by newspaper articles on the subject, word quickly spread through the school and the community about Detective Mintus' investigation of Mr. Miller's on-campus sexual activity with HLWMS students and teachers. As a result, "things at the school came to a standstill." Students openly discussed Respondent's having been sexually involved with Mr. Miller and expressed their anger with Respondent for her having engaged in such activity.14 Ms. Wark sensed that Respondent had lost the respect of the student population as a whole, and their parents. Because it was towards the end of the school year, Ms. Wark took no action to have Respondent removed from her classroom assignment while Detective Mintus' investigation was still ongoing; however, she did instruct Respondent not to attend any school functions (including graduation) to which parents were invited. It was not until the beginning of the following school year (the 2009-2010 school year) that Respondent was taken out of the classroom and assigned administrative duties.15 Respondent had left the April 27, 2009, interview with the understanding that Detective Mintus would contact her to make arrangements for a follow-up interview. Detective Mintus, though, expected Respondent to contact him. After not hearing from Respondent for a couple of months, he sent Respondent a letter, dated July 1, 2009, asking her to get in touch with him so that he could set up another interview. Respondent did not receive Detective Mintus' letter until July 20, 2009.16 She immediately contacted her attorney and read the letter to her. Respondent's attorney then contacted Detective Mintus. Respondent was interviewed a third time by Detective Mintus on July 29, 2009. She was accompanied to the interview by her attorney. Immediately before the interview began, Respondent's attorney told Detective Mintus, on Respondent's behalf, that Respondent did not want to press charges against Mr. Miller because she desired "to get on with her life and not have any notoriety." During the interview, Respondent gave details regarding her relationship with Mr. Miller. She acknowledged that she had engaged in sexual activity with Mr. Miller on the HLWMS campus, but continued to maintain (truthfully) that she had not willfully participated in this activity. After completing his investigation, Mr. Mintus issued an Investigative Report, in which he found, among other things, that Respondent and Mr. Miller had had "mutually agreed upon sexual intercourse together on multiple occasions" on the HLWMS campus. On August 14, 2009, Detective Mintus' Investigative Report was forwarded to the School Board's Department of Employee Relations. The matter ultimately was brought to the attention of the School Superintendent, who, on February 12, 2010, advised Respondent that a determination had been made that there was "sufficient evidence to warrant [her] termination from [her] position as Teacher" and that he therefore would "recommend her suspension without pay and termination at the March 3, 2010 School Board Special Meeting." The School Board followed the School Superintendent's recommendation, and it suspended Respondent without pay effective March 4, 2010, pending the outcome of termination proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board issue a final order finding that the charges against Respondent have not been sustained and awarding Respondent "back salary" for the period she was under suspension without pay. DONE AND ENTERED this 2nd day of August, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 2nd day of August, 2010.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 26th day of February, 2003.
The Issue Did Petitioner, Gregory K. Adkins, as Superintendent for the Board of the School District of Lee County, Florida (Superintendent), prove just cause to terminate the employment of Respondent, Orlando Torres?
Findings Of Fact The Superintendent, on behalf of the School Board of Lee County (Board), is responsible for hiring, overseeing, and terminating, all employees in the school district. At all times material to this case, the Board employed Mr. Torres as a security specialist at East Lee County High School (East Lee). Mr. Torres also sometimes served as an assistant coach and/or substitute athletic trainer. Mr. Torres has worked for the Board since August 5, 2011. For the 2011 through 2015 school years Mr. Torres’ received a final Performance Evaluation with a score of “Effective” in all areas assessed. The "Manager Comments" on Mr. Torres' Final Performance Evaluations consisted of the following: "Mr. Torres is an integral part of the MLE [Mirror Lakes Elementary] team. He has been a great addition to our staff [2014-2015 Evaluation]”; "Mr. Torres is a very valuable asset and is well respected and supported as an integral part of the MLE team [2013-2014 Evaluation]"; "Orlando performs various duties at East: security and coaching. He has done a good job with both. Orlando was accepting of taking on the night security position until a candidate was hired [2012-2013 Evaluation]"; and "Orlando is a team player and is always willing to go above and beyond to help staff and students [2011-2012 Evaluation]." Mr. Torres is a member of SPALC and was a member during all periods relevant to this matter. On February 4, 2016, the Board’s Department of Professional Standards and Equity (PS&E) received reports that on several occasions Mr. Torres made inappropriate comments and sexual remarks in the presence of or to female high school students. The comments included suggestions that Mr. Torres was interested in sex with the students. The comments caused the students extreme discomfort and embarrassment and created an inhospitable learning environment. The Board investigated. The information it collected caused the Board to terminate Mr. Torres’ employment. PS&E Coordinator, Andy Brown, conducted an investigation that included interviews of several students and of Mr. Torres. When Mr. Torres met Mr. Brown for his interview, Mr. Torres did not know the reason for the interview. Mr. Brown advised Mr. Torres that he was the subject of an investigation and asked him if he knew what it was about. Mr. Torres said: “When I meet with a female, I always have another female present.” This was not true. Mr. Torres’ spontaneous and dishonest statement in response to simply being asked if he knew what the investigation was about is persuasive evidence that he had improper conversations with female students and is a contributing factor to concluding that his testimony denying the charges is not credible. In November and December of 2015, and January 2016, Mr. Torres made several sexually charged, inappropriate comments to students. Five of the incidents involved N.M., who was an eleventh grade student at the time. N.M.’s mother worked at the school. Consequently, N.M. stayed at school after classes until her mother left work. N.M.’s mother arranged for N.M. to assist Mr. Torres in his training tasks after school. This is how she met Mr. Torres. The arrangement lasted about a week. Around November 2015, Mr. Torres gave N.M. a “high-five.” He prolonged the contact by grabbing her hand and intertwining his fingers with hers. In a separate incident, while giving N.M. a “bandaid” for a scratch, Mr. Torres asked her if she would ever get involved with a married man. She said no and walked away. On another occasion, N.M. encountered Mr. Torres while she was walking to lunch. N.M. was wearing what she described as a “burgundy semi-see-through” shirt. Mr. Torres told her to cover up her “goodies” or her “girls,” referring to her breasts, so nobody else could see them. N.M.’s testimony used the word “girls” while her statement in February 2016 said “goodies.” This minor discrepancy is understandable given the passage of time and the stresses of an interview and testimony. On yet another occasion, Mr. Torres remarked in Spanish, when N.M. bent down, “I like ass.” Mr. Torres spoke to N.M. after she had been called to the school office to provide a statement about a conflict that Mr. Torres had with another student. When he learned the purpose of the request for a statement from N.M., Mr. Torres said, “I thought I was gonna get in trouble for flirting with you; thank god we didn’t take it to second base.” In early February, N.M. was walking with her then- friend S.S., when Mr. Torres exited a room and saw them. He said “you look delic . . ., beautiful,” to N.M., shifting from “delicious” to “beautiful” when he noticed S.S. Mr. Torres also made a comment about wishing N.M. was 18. Another Security Specialist, Russell Barrs, who N.M. considered a friend, overheard bits of a conversation between N.M. and S.S. about the encounter. He asked N.M. about it. She replied with generalities A day or two later N.M. met with Mr. Barrs and provided complete information about Mr. Torres’ comments to her. Mr. Barrs reported this to Assistant Principal Edward Matthews. Mr. Matthews launched the investigation. It is noteworthy that S.S., whose friendship with N.M. ended, still testified to the same events as N.M. did. The two had a falling out sometime in 2016. The testimony of S.S. was not a matter of loyal support for a friend. In fact, the tone and body language of both students gave the distinct impression that the end of the friendship was not pleasant. N.M.’s mother had just started working at the school. N.M. did not immediately report Mr. Torres’ advances to her mother or other adults. When she did report them, her initial statements were incomplete and vague. She just told her mother she was not comfortable being in the room with Mr. Torres. She also told her mother that Mr. Torres “says things.” Later, after speaking to Mr. Barrs, N.M. provided her mother a complete description of the comments. After classes, Mr. Torres spent a good deal of time in the training room where first aid supplies and ice are stored for student-athletes. The training room was divided into two smaller rooms separated by a door that was usually shut. One room contained the ice machine, other equipment, and supplies. The other part of the room served as an office for Mr. Torres. Students, including N.M. and C.P., assisted or visited with Mr. Torres in the training room at times. C.P. was a female student who served as one of the managers for the girls’ basketball team. Once while observing her prepare an ice pack by sucking air out of it, Mr. Torres said words to the effect of “like how you suck a boy’s dick.” C.P. was a ninth grader at the time. Mr. Torres also told her that he would like to marry her when she turned 18. Another time, Mr. Torres tried to hug C.P. Mr. Torres also told C.P. that they should not talk in the hall because the security video cameras may record them. Another time, after overhearing a discussion in Spanish by several female students about sexual activity, Mr. Torres told C.P. that if he ever had sex with her he would break her. Two or three times Mr. Torres told C.P. that she was beautiful and he wanted to marry her after she graduated. The comments made C.P. extremely uncomfortable and unsure of what to do. She was scared. She quit her position as manager to avoid contact with Mr. Torres. Like N.M., C.P. was slow to report the comments to an adult. When she first told her step-mother she described Mr. Torres’ comments as coming from a substitute teacher. C.P. was scared and did not want to get involved. When she did, the details understandably came out in bits and pieces. Mr. Torres’ improper familiarity with students N.M. and C.P. and his sexually charged comments were frequent and varied. They were improper and detrimental to the emotional and mental health of the students. The crux of Mr. Torres’ defense is that none of the testimony about his actions is true. His testimony is not as credible as that of the students who testified to his offenses. One reason, mentioned earlier, is Mr. Torres’ spontaneous statement when Mr. Brown met him for the interview that he was never alone with a female. It manifests guilt and anxiousness that would not be present without his being aware of his improper behavior. Another reason is that the testimony of the students is sufficiently consistent to provide credibility. And N.M., C.P., and S.S. all made reports within a few months of Mr. Torres’ comments. A third reason is that N.M.’s testimony was supported by S.S. at hearing even though their earlier friendship had ended. A fourth reason is that there is no evidence of a motive for N.M., S.S., and C.P to fabricate their reports. For the time period when Mr. Torres made the comment to C.P. about “breaking her,” several students offered differing testimony about who was in the room when and whether Mr. Torres was giving a student instruction on a trumpet. This testimony is not sufficient to impeach the credibility of N.M. and C.P. Those were not the students to whom the offending remarks were made. The details of that day would not have been noteworthy to them at the time. Similarly, given the nature of Mr. Torres’ comments, the details of exactly who was present when would have been secondary to N.M. and C.P. Finally, Mr. Torres made one particularly transparent and deliberate effort to manipulate the truth during cross-examination that undermines relying on Mr. Torres’ testimony. Early in the hearing, in Mr. Torres’ presence, the Board attempted to enter evidence that during prior employment as a detention officer with the Sheriff of Lee County, Mr. Torres reacted to teasing by other officers by drawing his service pistol. The objection to the evidence was sustained. Later Mr. Torres testified that the testimony against him was not credible because he would never take such risks at a school where his wife was also employed, his children were students, and N.M.’s mother was employed. This testimony opened the door to the pistol drawing incident as evidence of Mr. Torres taking risky actions at work. The exchange about the incident, starting at page 329 of Volume II of the Transcript, follows: Q: But you engaged in risky behavior in your two law enforcement jobs prior, did you not? A: I don’t consider that risky behavior. Q: Well, you don’t consider pulling your service revolver as risky behavior? [objection and ruling] A: I have never carried a revolver. Q: Your service weapon, sir? ALJ: You said you never carried a revolver. Have you ever carried a pistol? A: Yes sir. ALJ: Next question. Q: Would you consider pulling your service pistol in an inappropriate manner risky behavior, sir? A: Yes, sir. Mr. Torres testified with full knowledge from the earlier attempt to introduce evidence of the incident to what the question referred. His answer was hair-splitting at best and demonstrated a willingness to shade, if not evade, the truth that significantly undermines his credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Respondent, Orlando Torres, and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 31st day of October, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2016.
The Issue Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Findings Of Fact Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District. At all times material to the allegations of this case, Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS). Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores. While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors. In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site. While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked, second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis. Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent. After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors. In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors. On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to remove his penis from his pants, and exposed his own penis to Officer Buck. All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located. Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper. As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school. The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited. Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts were committed on school property during the school day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing Respondent from his employment with the school district. DONE AND ENTERED this 27th day of August, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1998. COPIES FURNISHED: Carlos E. Mustelier, Jr., Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 26th day of July, 2011.
The Issue This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful neglect of duty; and in Count III with misconduct in office.
Findings Of Fact At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida. Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board. During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time. On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP"). At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP. On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP. On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS"). On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives. At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office. At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment. On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program. During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School. During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed. During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table. On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal. On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation. On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her. Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High. Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school. On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk. At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator. On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office. On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control." On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem. On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation. Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School. During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out. At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators. After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature. As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated. On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner. On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination. At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation. On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year. On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies. On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete. By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996. At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office. On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff. While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school. On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home. On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with the directives listed immediately above, within five (5) work days or face further disciplinary action. On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts. On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days. On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day. The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety. On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination. Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner. Respondent failed to attend the CFR scheduled for May 13, 1997. At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that: Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges; Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
The Issue Whether just cause exists for Petitioner, the Polk County School Board, to terminate Respondent, Helena Mays, from her employment as a classroom teacher.
Findings Of Fact It is well established under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier- of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Thus, determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. “The School Board bears the burden of proving by a preponderance of the evidence each element of the charged offense which may warrant dismissal.” Cropsey v. Sch. Bd., 19 So. 3d 351, 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990)). Preponderance of the evidence is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014). The School Board contends that “just cause” exists to terminate Ms. Mays because she improperly required K.G., D.G., and C.C. to clean the floor with a toothbrush on one occasion each, which constituted “misconduct in office.” § 1012.33(1)(a); Fla. Admin. Code R. 6A-5.056(2)(b), (c). The School Board alleges two violations of “the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.,” and two identical violations of “adopted school board rules.” First, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by “intentionally expos[ing] [them] to unnecessary embarrassment or disparagement.” Fla. Admin. Code R. 6A-10.081(2)(a)5.; Polk Cty. Sch. Bd. R. 3210A.5. Second, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by failing to “make reasonable effort to protect [them] from conditions harmful to learning and/or to [their] mental and/or physical health and/or safety.” Fla. Admin. Code R. 6A-10.081(2)(a)1.; Polk Cty. Sch. Bd. R. 3210A.1. There is no dispute that Ms. Mays required K.G. and D.G. to each clean the floor with a toothbrush. Thus, the relevant issue as to these students is whether the School Board proved by a preponderance of the evidence that this disciplinary tactic constituted “misconduct in office.” However, as to C.C., the evidence did not establish that Ms. Mays required him to clean the floor with a toothbrush. C.C. testified that he cleaned the floor with a washcloth and had no recollection of ever using a toothbrush. Because the School Board’s termination notice focused solely on the use of a toothbrush as an improper disciplinary tactic, it cannot belatedly allege now that requiring C.C. to clean the floor with a washcloth constituted misconduct in office. In fact, a washcloth is more akin to a sponge, which the School Board does not contend was misconduct given its decision to proceed only on the instances involving a toothbrush. Nevertheless, the undersigned will evaluate the evidence as it relates to C.C. in the same manner as the other two students. Based on the weight of the evidence detailed above, the School Board failed to establish by a preponderance of the evidence that Ms. Mays exposed the students to unnecessary embarrassment or disparagement, much less that she did so intentionally. None of the three students testified that they felt embarrassed or disparaged, and Investigator Marbutt did not believe that Ms. Mays intentionally tried to embarrass or harm them. At most, Investigator Marbutt agreed that there were “potential violations for creating physical or emotional harm and potentially humiliating the students,” but he never explained how the evidence substantiated that “potential” belief. Principal Burkett also confirmed that Ms. Mays never said she intended to humiliate or inflict pain on the students. In sum, the credible weight of the evidence does not establish that Ms. Mays violated rule 6A-10.081(2)(a)5. or School Board rule 3210A.5. Likewise, based on the weight of the evidence discussed above, the School Board did not establish by a preponderance of the evidence that Ms. Mays unreasonably failed to protect the students from conditions harmful to learning, their mental and/or physical health, or their safety. No credible, competent evidence was presented that this disciplinary tactic unreasonably exposed the students to any such harmful conditions, much less a safety hazard. K.G. and D.G. offered no testimony that they suffered pain while being disciplined in this manner and, though C.C. indicated that his hands were sore, it was the same pain he experienced when he wrote too much. Principal Burkett testified that the School preferred a more positive method of discipline, but neither he nor any other witness explained how these three isolated events that were not shown to last more than 15 minutes unreasonably harmed the students. In short, the credible weight of the evidence does not support the allegation that Ms. Mays violated Rule 6A-10.081(2)(a)1. or School Board Rule 3210A.1. Accordingly, the undersigned finds as a matter of ultimate fact that the School Board did not show by a preponderance of the evidence that it had “just cause” to terminate Ms. Mays. § 1012.33(1)(a), Fla. Stat.
Recommendation Based on the foregoing Findings of Fact, Ultimate Findings of Fact, and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing the charges against Ms. Mays, reinstating her employment as a teacher, and awarding her back pay to the date on which she was first suspended without pay. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.
