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 In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges 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 Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES 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. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
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 her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, 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 16th day of December, 2008.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action 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 School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES 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. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). 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 Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
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 as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, 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 14th day of August, 2002.
The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 for Petitioner to suspend Respondent from his employment as a teacher for ten days without pay in Case No. 19-3380; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to terminate Respondent's employment as a teacher in Case No. 19-3381.
Findings Of Fact The Parties Petitioner is the entity charged with operating, controlling, and supervising all district public schools in Broward County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33. Respondent is employed by the District as a mathematics teacher at Miramar High School ("MHS") pursuant to a professional services contract issued in accordance with section 1012.33(3)(a). He holds a professional educator's certificate in mathematics for 6th through 12th grades. Respondent was employed by the District in 2007, and has been a teacher at MHS since the 2007-2008 school year, with the exception of most of the 2015-2016 school year, during which he was administratively reassigned with pay pending the outcome of a personnel investigation. He returned to teaching at MHS for the 2016-2017 school year, and was a teacher at MHS during the 2018-2019 school year, when the conduct giving rise to these proceedings is alleged to have occurred. The Administrative Complaints February Administrative Complaint The February Administrative Complaint, which gives rise to Case No. 19-3380, alleges that during the 2017-2018 school year and the first semester of the 2018-2019 school year, Respondent engaged in conduct that violated specified statutes, DOE rules, and School Board policies. Pursuant to the February Administrative Complaint, Petitioner seeks to suspend Respondent from his employment as a teacher for ten days without pay. Specifically, the February Administrative Complaint alleges that after previously having been disciplined for making racially insensitive and inappropriate comments to students, Respondent continued to use embarrassing or disparaging language toward students. As a result, a cease and desist letter was issued to Respondent on or about March 23, 2017, directing him to cease engaging in such conduct. The Administrative Complaint alleges that Respondent continued to use racially insensitive, embarrassing, and disparaging language toward students—specifically, that he referred to an African-American male student as "boy." The February Administrative Complaint also alleges that Respondent threatened to remove students who talked from his class; graded students based on their behavior, rather than their work product; and failed to grade student work in a timely manner. As a result of this alleged conduct, Respondent received a meeting summary memorandum on or about December 7, 2017. The February Administrative Complaint alleges that Respondent still failed to contact the parents of students who were failing and engaged in unfair grading practices, resulting in issuance of another meeting summary memorandum to him on or about April 27, 2018. The February Administrative Complaint alleges that in the first semester of the 2018-2019 school year, during a Code Red Drill, Respondent is alleged to have engaged in racially insensitive conduct by disparately disciplining African-American students for engaging in the same type of conduct in which white and Hispanic students engaged, without any disciplinary consequences. The Administrative Complaint also alleges that during the Code Red Drill, Respondent was so disengaged from his students that he did not know one of his student's name and, consequently, wrote a disciplinary referral for the wrong student. The February Administrative Complaint alleges that Respondent engaged in conduct demeaning to students. Specifically, it is alleged that Respondent did not respond to student questions regarding how to do problems; embarrassed a student by saying he did not understand fifth grade math; and wrote "1 + 1" on the board to mock students in his class. He also allegedly reduced a student's class participation grade for talking. The February Administrative Complaint alleges that Respondent spoke to a "black girl who is Jamaican in Creole because he assumes she is Haitian." The February Administrative Complaint alleges that Respondent embarrassed and degraded a student by saying he did not understand the classwork "because it's not fifth grade math." The February Administrative Complaint also alleges that Respondent demeaned students by saying "'slick stuff,' such as 'math is simple and we are used to [second] or [fifth] grade math.'" The February Administrative Complaint alleges that Respondent lowered the grade of a student for talking, and told her that she and several other students were "on his 'watch list'" of students who would have their grades lowered for talking. The February Administrative Complaint further alleges that when that student asked about Respondent's grading practices, he responded "you ask too much questions," causing the whole class to laugh. The February Administrative Complaint alleges that on or about October 10, 2018, during the administration of the Preliminary Scholastic Aptitude Test ("PSAT"), Respondent did not follow proper testing protocol. Specifically, it is alleged that Respondent did not pick up the testing materials on time, started the test late, and did not read all of the directions to the students. It is also alleged that he did not collect book bags and cell phones and place them at the front of the room, and that a cell phone rang during the test. Additionally, he is alleged to have allowed students to talk loudly during the test. The February Administrative Complaint alleges that Respondent took points off of a student's grade for talking. The February Administrative Complaint alleges that Respondent refused to allow students who had missed class due to a band trip to make up their class work. The February Administrative Complaint alleges that Respondent made demeaning comments about students' writing; used the word "horrible" to describe their work, which made them feel "dumb or stupid"; was "disrespectful and sarcastic"; and deducted students' class participation points for talking or asking for a pencil or paper. The February Administrative Complaint alleges that Respondent talked to students in a demeaning manner about being "slow" and told students he thought the Chinese were smarter than Americans. May Administrative Complaint The May Administrative Complaint, which gives rise to Case No. 19-3381, alleges that in the second semester of the 2018-2019 school year, Respondent continued to engage in conduct that violated specified statutes, DOE rules, and School Board policies. Specifically, the May Administrative Complaint alleges that in February 2019, Respondent threatened to put tape over students' mouths for talking; disparaged students through racially insensitive treatment and comments; and made insulting and offensive comments to students regarding their mental health and ethnicity. The May Administrative Complaint also alleges that Respondent wrote a "red list" of students' names on the board who were disruptive or talking and continued to engage in inappropriate grading practices, such as lowering students' grades as a means of discipline for behavior issues. The May Administrative Complaint also alleges that Respondent continued his practices of not contacting parents of failing students; not writing referrals to deal with disciplinary matters; and failing to create a discipline plan for dealing with behavior issues in his classroom, as directed. In addition, the May Administrative Complaint alleges that Respondent claimed that during the past four years, Respondent's students were manipulated by an assistant principal, Ms. Hoff, to write false statements against him, notwithstanding that Hoff had not been employed at MHS for the previous two years. Pursuant to the May Administrative Complaint, Petitioner seeks to terminate Respondent's employment as a teacher. Stipulated Facts Regarding Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of disciplinary corrective actions while employed as a teacher with the District.8 On or about February 13, 2013, Respondent received a verbal reprimand for failing to meet the performance standards required of his 8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), states: The types of corrective action may include, but are not limited to the following employment actions: verbal reprimands, written reprimands, suspension without pay, demotion, or termination of employment. There are other types of actions to encourage and support the improvement of employee performance, conduct or attendance that are not considered disciplinary in nature. These actions may include, but are not limited to: coaching, counseling, meeting summaries, and additional training. Policy 4.9, Corrective Action. Respondent cannot be subjected to discipline in these proceedings for previous violations of statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. & Prof'l Reg., Case No. 11-4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple administrative punishments cannot be imposed for a particular incident of misconduct). However, under Policy 4.9, section III, the history of disciplinary corrective actions is relevant to determining the appropriate penalty, if any, to be imposed in these proceedings, and history of disciplinary and non-disciplinary corrective actions is relevant to determining whether Respondent subsequently engaged in conduct constituting gross insubordination, as charged in these proceedings. position, by failing to follow School Board policy and procedures and engaging in unprofessional conduct. On or about May 30, 2013, Respondent received a written reprimand for not following proper procedures, and being insubordinate by failing to follow such procedures after numerous directives. Specifically, he failed to contact the parents of students who had been habitually truant or were failing his class; arrived late to work several times; lied about parking in the student parking lot; and left students unsupervised on multiple occasions. On November 8, 2016, Respondent received a verbal reprimand for not providing accommodations to his exceptional student education ("ESE") students; not taking attendance; not grading students’ work or grading students’ work inaccurately; and failing to provide feedback to students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. This five-day suspension resulted from a personnel investigation by the District police department into allegations that Respondent made racist and racially insensitive remarks to students. The request for the investigation was made on or about October 16, 2015. Respondent was administratively reassigned out of the classroom on November 6, 2015, and was not released from administrative reassignment until August 15, 2016. Respondent originally challenged the five-day suspension in Case No. 17-1179TTS, but later withdrew his challenge, and the case was closed on May 19, 2017. The Commissioner of Education ("COE") also filed an administrative complaint with the Education Practices Commission, based on Respondent making racially, ethnically, and/or socioeconomically-driven disparaging comments toward students. Respondent entered into a settlement agreement with the COE under which he received a written reprimand; was fined and placed on probation for one year; and was assessed costs for monitoring his probation. The written reprimand was placed in his District personnel file. On or about October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; grading inaccuracies; refusing to accept work; grading student behavior rather than student work product; failing to contact parents; failing to follow a discipline plan; failing to grade student work in a timely manner; entering incorrect grades; failing to provide ESE accommodations to students entitled to receive such accommodations; and making disparaging remarks about colleagues. This letter of reprimand resulted from a personnel investigation conducted by the District police department regarding numerous allegations against Respondent. These allegations included, but were not limited to, unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; lowering grades based on behavior; failing to contact parents; grading and attendance inaccuracies; providing fake lesson plans to his assistant principal; and making remarks to a student that a fellow math teacher did not know what she was doing. The request for the investigation was made on or about November 21, 2016. Respondent did not challenge the letter of reprimand. Stipulated Facts Regarding Non-Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of non-disciplinary corrective actions while he was employed as a teacher with the District. On or about July 16, 2011, Respondent received a concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures, and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 20, 2011, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 31, 2012, Respondent received another concerns and expectations memorandum for failing to follow the District’s grading system. On or about January 7, 2013, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records of students and failing to follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his class; and making students feel disparaged or embarrassed. He was directed to ensure that students understand his grading criteria for classwork and homework; use strategies to help students with new knowledge; use strategies to help students practice and deepen the new knowledge in all lessons and activities; and not intentionally expose students to unnecessary embarrassment or disparagement. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students; failure to contact parents or write referrals for behavior issues; and concerns about his failure to provide daily remediation. Respondent was advised that he was expected to create and maintain a positive and pleasant learning environment in the classroom; use effective instructional strategies and feedback techniques that do not embarrass students; create and follow a discipline plan for his classroom; contact parents when students are failing; write referrals for referable acts; and remediate and teach students daily. Respondent was informed that his failure to correct these issues may result in disciplinary action. On or about March 23, 2017, Respondent was issued a cease and desist letter for his continued use of embarrassing and disparaging language toward students. On or about December 7, 2017, Respondent received a meeting summary for his use of embarrassing and condescending language towards the students, by referring to an African-American male student as "boy"; threatening to remove students from his class if they misbehaved during a formal observation; grading students on their behavior rather than their work product; and failing to grade student work in a timely manner. He was directed to refrain from using condescending language that makes students feel inferior in math; learn his students’ names and refer to them by name; create and follow a discipline plan for his classroom without removing students unless they have completely disrupted the teaching and learning process in the classroom; enter grades in a timely manner and refrain from deducting participation points from students' grades for talking; and contact parents and write referrals for student misbehavior. On or about April 27, 2018, Respondent received a meeting summary memorandum for failing to contact parents of students who had D's or F's in his classes, and for keeping inaccurate grades. Findings of Fact Based on Evidence Adduced at Final Hearing Based on the preponderance of the competent substantial evidence; the following Findings of Fact are made regarding the conduct charged in the February Administrative Complaint and the May Administrative Complaint. February Administrative Complaint The February Administrative Complaint charges Respondent with having engaged in conduct during the first semester of the 2018-2019 school year that is alleged to violate statutes, DOE rules, and School Board policies. By way of background, Tevin Fuller and Julian Cardenty were students in Respondent's financial algebra class in the 2017-2018 school year. Both credibly testified that during a class in the 2017-2018 school year, Respondent called Fuller, who is African-American, "boy" and "bad boy." Both Fuller and Cardenty were offended by Respondent's use of the word "boy" in referring to Fuller, and considered it a racially demeaning remark. They reported Respondent's conduct to Assistant Principal J.P. Murray. Fuller credibly testified that as a result of Respondent's disrespectful conduct toward him, he avoided attending Respondent's class. As discussed above, in December 2017, as a result, Respondent previously had been issued a summary memorandum—a non-disciplinary corrective action—which instructed him to, among other things, cease using racially demeaning terms toward African-American students, and cease using condescending language that made students feel inferior regarding their mathematical ability. The credible, consistent evidence establishes that during the first semester of the 2018-2019 school year, Respondent continued to make racially insensitive and demeaning comments, and engage in conduct directed toward students in his classes that they found embarrassing and offensive. Specifically, several students testified, credibly, that on one occasion during the 2018-2019 school year, after Respondent gave an unannounced quiz to his financial algebra class, he stated that he would not grade the quiz papers because he could "see the F's on their foreheads," or words to that effect. The credible evidence establishes that the students considered this remark as demeaning to their ability and intelligence, and they were offended. This testimony corroborated several written statements, admitted into evidence, which were provided by students at or about the time this incident took place. Two students, Malik Cooper and Nyesha Dixon, credibly testified that they witnessed Respondent belittle and mock a student, Jordan Lee, when he asked for assistance on a class assignment in Respondent's financial algebra class. Specifically, they saw and heard Respondent comment to Lee that he (Lee) did not understand the lesson because he could "only understand fifth grade math," or words to that effect. Dixon and Cooper both credibly testified that the whole class laughed at Respondent's comment to Lee. Dixon testified, credibly, that Lee appeared shocked and embarrassed by Respondent's comment. Although Petitioner did not present Lee's testimony at the final hearing, Lee provided a written statement that was admitted into evidence, describing this incident. An email from Lee's mother to Murray regarding this incident corroborates Dixon's and Cooper's testimony and Lee's reaction to Respondent's insulting comment to him. Two students, Breanna Dwyer and Malik Cooper, credibly testified that on one occasion, Respondent told his students that the Chinese were smarter and learned faster than Americans, a comment that the students interpreted as belittling their intelligence. Two students, Dorcas Alao and Nyesha Dixon, testified, credibly, to the effect that Respondent singled out Haitian students and made remarks to them, which those students found offensive. Specifically, they testified that Respondent would attempt to speak to Haitian students in Creole, that the students told him they found his behavior offensive, and that Respondent would "just laugh." Several students credibly testified, in more general terms, that Respondent frequently spoke down to them, treated them in a condescending manner, made rude remarks to them, and was disrespectful toward them, and that his conduct and remarks were insulting and made them feel as if they were ignorant and unintelligent. Additionally, one student, Whitney Malcolm, testified, credibly, that in response to her asking a question about a syntax error on a calculator, Respondent yelled at her loudly enough for the entire class to hear. Malcolm testified, credibly, that she was embarrassed by the incident. The credible evidence establishes that Respondent continued to lower students' academic course grades as a means of addressing behavioral issues, notwithstanding that he had been issued a meeting summary on April 27, 2018, directing him not to do so. Specifically, several students testified, credibly, that Respondent kept a "watch list" of students for whom he deducted points off their academic course grade for behavioral issues, such as talking in class. Murray credibly testified, and the MHS Faculty Handbook for the 2018-2019 school year expressly states, that student misbehavior cannot be reflected in the academic course grade, and, instead, is to be addressed in the conduct grade. Murray testified that he counseled Respondent numerous times on this issue and directed him to cease deducting points from students' academic course grades for behavior issues. The evidence regarding Respondent's history of disciplinary and non-disciplinary corrective actions bears out that he repeatedly has been directed not to lower students' academic course grades as a means of dealing with classroom behavioral issues. The competent substantial evidence also establishes that Respondent did not follow proper testing protocol when administering the PSAT to his homeroom students on October 10, 2018. Specifically, notwithstanding that all teachers, including Respondent, who were administering the PSAT had been given training and provided written instructions regarding picking up the exams, reading the instructions to the students, and administering the exams, Respondent did not timely pick up the exams on the day it was administered. The exams for his homeroom students had to be delivered to the room in which he was to administer the exam, and as a consequence, he was late starting the exam administration. The credible evidence establishes that Respondent instructed the students to turn off their cell phones, place them in their book bags, and put their book bags away. However, he did not collect students' book bags or require students to place their book bags at the front of the room, as expressly required by the exam proctor reminders document and the PSAT/NMBQT Coordinator Manual, both of which previously had been provided to the teachers, including Respondent, who were administering the PSAT. As a result of Respondent's failure to follow exam protocol, the students kept their book bags next to, or under, their desks, in violation of that protocol. A cell phone rang during one of the testing sessions. The persuasive evidence establishes that Respondent had instructed students to silence their cell phones and put them away; thus, the cell phone ringing during a testing session was the result of a student failing to follow instructions, rather than Respondent failing to provide such instructions. Two teachers, Tamekia Thompson and Richard Cohen, went to Respondent's classroom at different times on the day the PSAT was administered, to tell the students in his classroom to be quiet. Amaya Mason, a student in Respondent's homeroom class who took the PSAT that day, complained in a written statement, and subsequently testified, that students were talking during the testing sessions, while the students were in the process of taking the exam. Other students who took the PSAT in Respondent's homeroom class that day testified that students did not talk during the testing sessions, but that they did talk loudly during breaks between the testing sessions. Thus, the evidence does not definitively establish that students were talking during the testing sessions themselves. As a result of these testing protocol irregularities, Alicia Carl, the Student Assessment Specialist at MHS, contacted the College Board regarding the testing conditions in Respondent's classroom. Ultimately, the students' exam scores were not invalidated. The February Administrative Complaint alleges that Respondent refused to allow two students, Dejah Jeancharles and Asia Parker, to make up classwork they had missed, notwithstanding that they had excused absences due to a band trip. However, the credible evidence established that Respondent ultimately did allow the students to make up the missed work. The February Administrative Complaint charges Respondent with disciplining African-American students during a Code Red Drill conducted on or about September 6, 2018, while not subjecting white and Hispanic students to discipline for engaging in the same conduct during the Code Red Drill. The students' testimony regarding whether Respondent engaged in this conduct was conflicting, and the greater weight of the competent, credible evidence fails to establish that Respondent engaged in this behavior. The February Administrative Complaint alleges that on or about April 27, 2018, Respondent was issued a meeting summary for failing to contact parents of failing students and engaging in unfair grading practices. Murray testified, and Petitioner presented excerpts of Respondent's grade book showing, that as of March 6, 2018, approximately 75 percent of Respondent's students were earning either D's or F's in Respondent's classes. Murray testified that MHS has a policy, stated in the 2018-2019 Faculty Handbook, that teachers "shouldn't have that many D's or F's."9 Murray testified, and Petitioner presented evidence consisting of an email from Murray to MHS Human Relations Specialist Nicole Voliton, stating that he (Murray) had spoken to parents, who told him that Respondent had not contacted them regarding their children's failing grades. Murray also testified that Respondent acknowledged to him that he had not 9 However, the February Administrative Complaint does not specifically charge Respondent with conduct related to the amount of D's and F's his students earned. Additionally, as discussed below, the Faculty Handbook policy does not establish a mandatory compliance standard regarding the amount of D's and F's given students on which disciplinary action can be based. contacted the parents of all students who were failing his courses. Murray's email and his testimony regarding parents' statements made to him constitute hearsay evidence that has not been shown to fall within an exception to the hearsay rule in section 90.802, Florida Statutes, and is not substantiated by any competent substantial evidence in the record; accordingly, the undersigned cannot assign weight to this evidence.10 May Administrative Complaint The May Administrative Complaint charges Respondent with having engaged in conduct in the second semester of the 2018-2019 school year that is alleged to violate DOE rules and Petitioner's policies. The credible evidence establishes that Respondent continued to engage in conduct, directed toward his students, that was demeaning and racially insensitive. Specifically, several students submitted written statements that in February 2019, Respondent threatened to tape students' mouths shut because they were talking in class. Students Dorcas Alao, Breanna Henry, and Darius Gaskin credibly testified about this incident, confirming that Respondent had engaged in such conduct toward students in his class. Alao, who is of Nigerian heritage, testified, credibly, that Respondent remarked to her that if she couldn't understand something in English, he would "say it in Yoruba," or words to that effect. She also testified, credibly, that Respondent told her that she had "mental issues." She was offended by Respondent's comments and reported the incidents to Murray. The credible evidence also establishes that Respondent continued to deduct points from students' academic course grades for behavioral issues, such as talking in class. 10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing or explaining other evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The burden of establishing that hearsay evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on the proponent of the hearsay. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(evidentiary proponent has burden to establish predicate for exception to hearsay rule). To this point, Alao and Henry credibly testified that Respondent deducted points from their academic course grades for talking in class. Murray corroborated this testimony, credibly testifying that he examined Respondent's grade book and confirmed that Respondent had deducted points from their grades. As a result, Henry's class grade dropped a letter grade, from an "A" to a "B." Several students also testified, credibly and consistently, that Respondent did not timely grade their classwork or homework papers, so they were unable to determine what their grades were, even when they accessed the Pinnacle electronic gradebook. The 2018-2019 Faculty Handbook for MHS expressly requires that grades be posted within 48 hours of collecting the assignment/test. Respondent has repeatedly been directed to timely and accurately grade classwork and homework, and to record the grades in Pinnacle so that students and parents can be apprised of student progress in the course. The disciplinary and non-disciplinary corrective actions to which Respondent previously has been subject bear this out. Murray testified, credibly, that in the second semester of the 2018-2019 school year, Respondent still did not timely or accurately grade classwork, homework, or tests, as required by the Faculty Handbook, and as previously directed through disciplinary and non-disciplinary corrective actions, discussed above. The May Administrative Complaint also alleges that Respondent made claims that former assistant principal Cornelia Hoff had manipulated students, during the previous four years, to write false statements about him. Murray testified, credibly, that Respondent did, in fact, make such claims. There was no evidence presented to substantiate any of Respondent's claims against Hoff, and the competent substantial evidence establishes that Hoff had not been employed at MHS for over two years at the time Respondent made such claims. The May Administrative Complaint also charges Respondent with failing to contact parents, write disciplinary referrals, and create a discipline plan for student behavior issues in his classroom, as previously directed. However, Petitioner failed to present any competent substantial evidence to substantiate the allegation that Respondent engaged in this specific conduct during the second semester of the 2018-2019 school year, which is the period covered by the May Administrative Complaint.11 Thus, Petitioner did not demonstrate that Respondent engaged in this conduct during the timeframe covered by the May Administrative Complaint. Witness Credibility Respondent contends, on the basis of inconsistencies between student witness's testimony and written statements regarding various details of Respondent's alleged conduct and surrounding circumstances, that these witnesses were not credible, so that their testimony should not be afforded weight in these proceedings. The undersigned rejects this contention. Although the students' accounts of Respondent's conduct and surrounding circumstances were not uniformly consistent, the inconsistencies concerned minor or collateral details, which the undersigned ascribes to the fact that the students were testifying about incidents that occurred as much as two years earlier. The undersigned found the student witnesses to be credible and persuasive. Crucial to this credibility determination is that the students' testimony was remarkably consistent with respect to whether Respondent 11 The evidence presented regarding this charge concerned conduct that is alleged to have occurred in the first semester of the 2018-2019 school year, which is not addressed in the May Administrative Complaint. Notably, the February Administrative Complaint, which addressed conduct that is alleged to have occurred in the 2017-2018 school year and the first semester of the 2018-2019 school year, did not charge Respondent with having engaged in such conduct. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint violates the Administrative Procedure Act). engaged in, and the significant circumstances pertaining to, the conduct at issue in these proceedings. Findings of Ultimate Fact Under Florida law, whether conduct charged in a disciplinary proceeding constitutes a deviation from a standard of conduct established by statute, rule, or policy is a question of fact to be determined by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged in an administrative complaint violates the statutes, rules, and policies cited as the basis for the proposed disciplinary action is a factual, rather than legal, determination. February Administrative Complaint Here, Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the February Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules, School Board policies, and Florida Statutes. Rule 6A-5.056(2) – Misconduct in Office As found above, Respondent made racially insensitive comments and comments that demeaned and belittled students in his classes. The evidence also established that Respondent yelled at students. As a result, many of his students felt disrespected, embarrassed, and offended. One student, Tevin Fuller, even went so far as to avoid going to Respondent's class in order to avoid Respondent's harassment and disrespectful treatment of him. Respondent's behavior toward his students constituted misconduct in office under Florida Administrative Code Rule 6A-5.056(2), because it disrupted the students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office, pursuant to rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes a teacher's professional obligations to students. Specifically, in making demeaning, racially insensitive, and embarrassing comments to students in his classes, he failed to make reasonable effort to protect his students from conditions harmful to their learning and mental health, in violation of rule 6A-10.081(2)(a)1. He also intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5., and harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and disrespectful comments toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because they violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and in engaging in disrespectful conduct toward his students, Respondent failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed above, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Additionally, as found above, Respondent did not follow established exam protocol when he failed to collect students' book bags and place them at the front of the room during administration of the PSAT to his homeroom class on October 10, 2018, as specified in the PSAT/NMSQT administration manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes. Thus, Respondent failed to perform duties prescribed by law, which constitutes incompetency due to inefficiency under rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language toward students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, Respondent received a meeting summary for making racially insensitive comments to a male African-American student. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive, demeaning, and disrespectful comments to his students during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non- disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination under rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional12 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive and demeaning comments, and engaging in disrespectful conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing 12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com, https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's actions in this regard were done with intention or on purpose; there was no evidence presented from which it reasonably can be inferred that Respondent's actions in this regard were accidental. students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. Section 1008.24 – Test Administration and Security Based on the facts found above, it is determined that Respondent did not follow testing protocol when he failed to collect students' book bags before administering the PSAT on October 10, 2018. However, in order to violate section 1008.24, the failure to follow test administration directions must be done both "knowingly and willfully." Neither "knowingly" nor "willfully" are defined in chapter 1008. Where the legislature has not defined the words used in a statute, the language should be given its plain and ordinary meaning.13 The term "knowingly" is defined as "having knowledge or information"14 or "deliberate, conscious."15 The term "willfully" is defined as "deliberate, voluntary, or intentional."16 The evidence fails to establish that Respondent made the deliberate decision not to collect the book bags, notwithstanding the test manual and exam directions. From the evidence in the record, it is equally reasonable to infer17 that he either did not realize that he needed to collect the book bags, 13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009). It is appropriate to refer to dictionary definitions when construing a statute in order to ascertain the plain and ordinary meaning of words used in the statute. Id.; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary). 14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). 15 Black's Law Dictionary, Deluxe 7th ed., at p. 876. 16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or purposely as distinguished from accidentally or negligently." 17 See Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)(it is the presiding officer's function to, among other things, draw permissible inferences from the evidence). or that he simply forgot to do so. The latter inference is particularly plausible, given that he was running late in beginning administration of the test. Thus, it is found that Respondent did not violate section 1008.24, as charged in the February Administrative Complaint. School Board Policy 4008 - Responsibilities and Duties (Principals and Instructional Personnel) As discussed above, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 6314 – Testing – Assessing Student Achievement School Board Policy 6314, the text of which is set forth in the Conclusions of Law, below, establishes a District-wide policy regarding annual achievement testing. The plain language of the policy states, in pertinent part, "[a] program of achievement testing shall be conducted annually . . . ," and "[t]esting within the Broward County School District should be conducted to . . . [p]rovide parents/guardians with a yearly individual student test report and interpretation for those students who have been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this language, it is clear that Policy 6314 is specifically directed toward annual achievement testing, rather than routine classroom tests and quizzes. Further to this point, nowhere in Policy 6314 is there any language establishing a prohibition on giving unannounced class quizzes, or deciding not to count quiz grades in a class. Additionally, although the February Administrative Complaint cites Policy 6314 as a basis for imposing discipline, the policy does not establish any specific standards of conduct to which instructional personnel must adhere, or which can constitute the basis of disciplinary action for lack of compliance. Petitioner's Proposed Recommended Order cites Policy 6314 as a basis for imposing discipline on Respondent for having given an unannounced quiz in his class on material that he allegedly had not yet taught his class, and then deciding not to grade the quiz "because he could 'read the F's on their foreheads.'" However, as discussed above, the language of Policy 6314 makes clear that it does not apply to routine class tests and quizzes. Additionally, the February Administrative Complaint does not specifically charge Respondent with having engaged in any of this conduct. As discussed herein, Respondent cannot be disciplined for conduct which was not specifically charged in the Administrative Complaint.18 Therefore, even though credible testimony and other evidence was provided showing that Respondent engaged in this conduct, that evidence is relevant only with respect to whether Respondent made demeaning comments to his students. That conduct was charged in the February Administrative Complaint, and, as discussed herein, has been considered in determining that Respondent engaged in conduct constituting misconduct in office, pursuant to rule 6A-5.056(2). School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be 18 Cottrill, 685 So. 2d at 1372 (Fla. 1st DCA 1996). See note 11, supra. violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct established in statutes, DOE rules, and School Board policies. In this case, Respondent has been charged with "Category B" offenses under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets forth a non-exhaustive list of circumstances that may be considered in determining the appropriate penalty for Category B offenses. The racially insensitive and demeaning comments that Respondent repeatedly made to his students, over a substantial period of time in his employment with Petitioner, constitute a severe offense. The evidence establishes that Respondent's comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher—to the point that one student avoided going to class in order to avoid Respondent's racially insensitive and disrespectful conduct toward him. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct, negative impacts on his students. Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He previously has received two verbal reprimands, two written reprimands, and a five-day suspension without pay. Additionally, he has received numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, he has received approximately 14 corrective actions, five of which were disciplinary, between July 2011 and November 2018. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the February Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined or issued non- disciplinary corrective actions. The competent, credible evidence shows that these corrective actions have had little, if any, deterrent effect on Respondent's conduct. Based on the foregoing Findings of Fact, it is determined that Respondent should receive a ten-day suspension without pay in Case No. 19-3380, for having engaged in conduct that was charged in the February Administrative Complaint and proved by a preponderance of the competent substantial evidence. May Administrative Complaint Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the May Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules and School Board policies. Rule 6A-5.056(2) – Misconduct in Office As found above, in the second semester of the 2018-1019 school year, Respondent continued to make racially insensitive and disparaging comments, and engage in demeaning and disrespectful conduct, directed toward his students. Specifically, he directed racially insensitive comments toward an African-American student, Dorcas Alao, regarding her language and ethnicity. As discussed above, Alao found Respondent's conduct offensive. Respondent's conduct in this regard constituted misconduct in office, pursuant to rule 6A-5.056(2). Specifically, it disrupted his students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office under rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes his professional obligations to students. Specifically, in making racially insensitive and demeaning comments, he failed to make reasonable effort to protect his students from conditions harmful to their learning and to their mental health, in violation of rule 6A- 10.081(2)(a)1.; he intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5.; and he harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and demeaning comments and disrespectful conduct toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because it violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Respondent's conduct in making unsubstantiated accusations against former assistant principal Hoff constituted misconduct in office because it violated rule 6A-10.081(2)(c)5., which establishes the professional standard that an educator shall not make malicious or intentionally false statements about a colleague. Although the evidence does not establish that Respondent's accusations about Hoff were malicious—i.e., characterized by, or showing malice, intentionally harmful, or spiteful19—it is reasonable to infer that they were intentionally false, given that Hoff had not been employed at MHS for over two years when Respondent made those accusations, and that Murray had succeeded Hoff as Respondent's supervisor. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and engaging in disrespectful conduct, toward his students, Respondent also failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency as a result of inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed herein, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the School Board’s professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, 19 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). Respondent received a meeting summary for making racially insensitive comments to a male African-American student. Additionally, as discussed herein, the undersigned recommends that Respondent be suspended without pay for ten days in Case No. 19-3380, for continuing to engage in such conduct during the timeframe covered by the February Administrative Complaint. This ten-day suspension constitutes yet another disciplinary corrective action against Respondent for continuing to engage in conduct about which he repeatedly has been admonished, and has been directed to cease. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive and demeaning comments and engage in disrespectful conduct toward his students during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional20 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive, demeaning, and disrespectful comments and conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. School Board Policy 4008 – Responsibilities and Duties (Principals and Instructional Personnel) As discussed herein, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As previously discussed and further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct. The racially insensitive and demeaning comments that Respondent made to his students, repeatedly, over a substantial period of his employment with Petitioner, constitute a severe offense. The evidence establishes that his comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct and negative impacts on his students. As discussed above, Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He has previously received two verbal reprimands, two written reprimands, and a 20 See note 12, supra. five-day suspension without pay. Additionally, in Case No. 19-3380, the undersigned has recommended that Respondent be suspended for ten days without pay for engaging in conduct charged in that case. Respondent also has been subjected to numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, counting the ten-day suspension that has been recommended in Case No. 19-3380, Respondent has received approximately 15 corrective actions, six of which were disciplinary in nature, between July 2011 and March 2019. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the May Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined and issued non- disciplinary corrective actions. The evidence shows that these corrective actions have had essentially no deterrent effect on Respondent's conduct. The competent, credible evidence establishes that Petitioner has given Respondent numerous chances, through its corrective action policy, including the progressive discipline process, to change his conduct which violated, and continues to violate, DOE rules and School Board policies. The competent, credible evidence establishes that nonetheless, Respondent has continued, during the timeframe covered by the May Administrative Complaint, to engage in much of the same conduct which violates DOE rules and School Board policies, and for which he previously has received numerous disciplinary and non-disciplinary corrective actions. Petitioner has closely adhered to the progressive discipline provisions in Policy 4.9, meting out multiple verbal and written reprimands, interspersed with non-disciplinary corrective actions to Respondent, before resorting to suspending him from employment—first, for five days, then for ten days—for his persistent conduct which violated DOE rules and School Board policies. The purpose of Policy 4.9 is "to improve and/or change employees' job performance [and] conduct."21 Despite giving Respondent numerous opportunities, through disciplinary and non-disciplinary corrective actions, to change his conduct, Respondent has not done so. Given that Petitioner has closely followed the progressive discipline provisions of Policy 4.9, and the fact that Respondent has received numerous corrective actions over his period of employment with Petitioner—which have not resulted in him changing his conduct such that he does not engage in behavior which violates DOE rules and School Board policies—it is determined that, pursuant to Policy 4.9, Respondent should be terminated from his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a Final Order in Case No. 19-3380 suspending Respondent for ten days without pay, and enter a Final Order in Case No. 19-3381 terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th of May, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert W. Runcie Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
