The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2011.
Findings Of Fact Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian. On March 23, 1992, Davis was suspended by the Superintendent with pay. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14] Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis' violation of Gadsden County Board Rule 5.112 which provides in pertinent part: Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to: * * * (h) Violation of law, State Board of Education Rules, or School Board Rules. Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2, 1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and therein: Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board 1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22, 24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order. 2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence. COPIES FURNISHED: Robert H. Bryant, Superintendent Gadsden County School Board Post Office Box 818 Quincy, FL 32351 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Deborah J. Stephens Attorney at Law The Ausley Law Firm 227 South Calhoun Street Tallahassee, FL 32302 David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430 Tallahassee, FL 32302
The Issue Whether just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 11, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on an annual contract that is subject to a professional service contract and collective bargaining agreement between Miami-Dade County Public Schools (hereinafter "M-DCPS") and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any 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." Santa Clara Petitioner first employed Respondent as a classroom teacher beginning in 2004 and assigned him to teach fourth-grade math at Santa Clara Elementary School (Santa Clara). In May 2007, Petitioner's Civilian Investigative Unit (CIU) investigated an allegation that Respondent made verbal threats, using profane language, towards the principal at Santa Clara. Respondent was placed on alternate assignment at the Region 3 Office on May 3, 2007, pending the outcome of the case. The allegation was substantiated for violation of School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties). During a Conference for the Record, written directives were issued to Respondent. On November 1, 2007, Respondent was issued a written reprimand which contained the following directives: Please abide by Miami-Dade County Schools (M-DCPS) School Board Rules at all times, specifically, School Board Rule, 6Gx13-4A- 1.21 Responsibilities and Duties; School Board Rule, 6Gx13-4-1.08, Violence in the Workplace; and School Board Rule 6Gx13-4A- 1.23, Code of Ethics. Conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. The Education Practices Commission filed a complaint against Respondent based on the incident at Santa Clara. That complaint was settled with Respondent receiving an administrative fine in the amount of $500.00. As part of the settlement agreement, Respondent did not admit or deny the alleged facts of the Santa Clara incident. Turner Tech 2007-08 School Year Petitioner transferred Respondent to Turner Technical Senior High School (Turner Tech) in November 2007, where he taught math. There were no adverse incidents during the balance of the 2007-08 school year. Turner Tech 2008-09 School Year Valmarie Rhoden was the principal of Turner Tech during the 2008-09 school year and part of the 2009-10 school year. Phillipe Napoleon was an assistant principal at Turner Tech during the 2008-09 and 2009-10 school years.1 On November 18, 2008, one of Respondent's students told Respondent not to touch him and threatened to harm Respondent if he did so. Dr. Napoleon and Ms. Rhoden handled the situation for Respondent by giving the student two days of indoor suspension. Respondent became irate when he learned that the student was not to be more severely punished. After he learned of the student's punishment, Respondent yelled at Dr. Napoleon in the earshot of students and other school personnel. Respondent attempted to undermine Dr. Napoleon's authority. After that incident, Respondent and Dr. Napoleon had a very contentious relationship. On February 19, 2009, Ms. Rhoden issued Respondent a memorandum entitled "Responsibilities and Duties" along with the Board Rule for his review regarding his unprofessional behavior because he had made an unprofessional outburst during a faculty meeting that Ms. Rhoden conducted and because Respondent had made unprofessional comments to other administrators. That memorandum provided, in part, as follows: Please be reminded that it is your professional responsibility to conduct yourself in a manner that reflects credit upon yourself and the teaching profession. During the faculty meeting on Tuesday, February 17, 2009, you made an inappropriate comment and noise while I was addressing the faculty on the respect shown teachers at the North Central Regional Center Teacher of the Year Breakfast. On December 18, 2008, I met with you; Mr. Hoffman (Lead Steward); Ms. Meyers (Steward); Mr. Mantilla, Vice Principal; and Mr. Napoleon, Assistant Principal, to discuss a series of verbal altercations you had with these administrators. We discussed the importance of being professional and respectful when addressing administrators and students. Please be advised that your conduct is a violation of School Board Rule 6Gx13-4A-1.21 and is unacceptable. Please refrain from addressing others in a manner that may be deemed unprofessional. A copy of the Board Rule is attached for your review. If you need further clarification, please see me. Your cooperation is expected and appreciated. On April 27, 2009, Ms. Rhoden convened an Emergency Conference for the Record with Respondent to discuss reports of misconduct by Respondent during a UTD meeting that had occurred on April 23, 2009, and reports of inappropriate comments attributed to Respondent during a parent-teacher conference that occurred on April 24, 2009. Participants at the UTD meeting reported that Respondent became uncontrollable and made disparaging remarks against the union representative who conducted the meeting. Teachers reported to Ms. Rhoden that they left the meeting because they had become afraid of Respondent. The parent in the parent-teacher meeting reported that, in the presence of students, Respondent referred to Ms. Rhoden as a "bitch" and to administrators as "three blind mice." The parent reported that Respondent had said "screw" administrators. When Ms. Rhoden confronted Respondent about his behavior, he became enraged and engaged in an uncontrolled tirade. A Conference for the Record was conducted at the school on Monday, April 27, 2009, and Ms. Rhoden issued the following directives to Respondent: Adhere to all School Board rules, especially those related to Responsibilities and Duties. Adhere to the Code of Ethics. Conduct yourself in a professional manner at all times with all school personnel, parents and other stakeholders. Do not use profanity in the presence of students, faculty, staff and other stakeholders. Do not disrespect your administrators in your manner of speech or physical approach. Do not use provocative language towards administrators, students, staff, or other stakeholders. Respondent was the subject of a separate investigation based on an incident of misconduct that occurred on April 13, 2009, first in the hallway outside of Respondent's classroom and later in or near Dr. Napoleon's office. The incident that triggered Respondent the confrontations on April 13, 2009, occurred when Dr. Napoleon, while conducting routine observations of classrooms, noticed that a student in Respondent's classroom was wearing headphones. Dr. Napoleon entered Respondent's classroom and removed the headphones from the student. Respondent confronted Dr. Napoleon outside his classroom and said "how dare you come into my classroom and disrupt my classroom" in a "profoundly loud" manner in the hallway within earshot of school personnel and students. Later in the day, Respondent confronted Dr. Napoleon in the office area. Respondent was upset and became aggressive towards Dr. Napoleon when he demanded an explanation of a memorandum relating to the earlier confrontation that Dr. Napoleon had issued to him. Ernesto Mantilla, a vice-principal at Turner Tech, stepped between Respondent and Dr. Napoleon because of Respondent's aggressive, threatening behavior. Mr. Mantilla, who has military training, put himself in what he referred to as "harm's way" because he felt it necessary to de- escalate the situation. During that incident, Respondent told Dr. Napoleon that he was a "joke" and that he should leave the administration's efforts to Ms. Rhoden and Mr. Mantilla. Respondent threatened to tear up Dr. Napoleon's memorandum in front of Dr. Napoleon. Respondent asserted that his contract did not mandate him to be professional. He taunted Dr. Napoleon by telling him that if Dr. Napoleon was going to fire him, to just go ahead and do it so he can collect a check and stay home. Respondent refused to provide a statement during the course of that investigation stating that "it will take a year and a half to go through the process", and he would be resigning anyway at the end of the year. On May 14, 2009, Ms. Rhoden issued Respondent a letter of reprimand for his behavior on April 13, 2009, which directed him to immediately refrain from displaying unprofessional, confrontational behavior. The letter of reprimand also directed Respondent to stop using abusive and profane language in the performance of his assigned duties. Ms. Rhoden testified, credibly, that she and many of the staff members were afraid at times when Respondent "would go into his rage." His conduct "disrupted the environment" and impeded the workings of the school. Turner Tech 2009-10 School Year In September 2009, Dr. Napoleon conducted a training session for faculty at Turner Tech referred to as IPEGS training. Respondent was required to complete that training to maintain his teaching certification. Respondent left the room in which the training occurred and was absent for over half of the training session. Dr. Napoleon refused to award Respondent credit for the IPEGS training. Respondent became irate when told he would not be given credit and believed that Dr. Napoleon was harassing him. Ms. Rhoden retired in October 2009, and Lavette Hunter became the principal of Turner Tech. On or about October 19, 2009, Respondent replied to a co-worker's email and sent it to all employees sarcastically commenting on the teacher's updating of the school on his involvement with a student internship program. Respondent stated, "please, no more e-mails about your presence. You're wonderful. Feel better?" The teacher complained to Ms. Vidal, and when she discussed the concern with Respondent, he was very irate and said that he was "tired of this bullshit" and was leaving for the day. Respondent told her to find coverage for his class and left school. On October 26, 2009, Respondent went into Dr. Napoleon's office "ranting and raving" because he said that Dr. Napoleon was talking about him. During that meeting, Respondent asked Dr. Napoleon whether he had gotten to be an assistant principal as a result of affirmative action. When Dr. Napoleon asked him to leave his office, Respondent refused, stating that he was going to leave when he got ready to leave. He thereafter left. Dr. Napoleon believed that Respondent's comment was a racial slur and, on October 27, 2009, filed a complaint with the M-DCPS Office of Civil Rights, which triggered an investigation (the civil rights investigation). Dr. Napoleon is African- American, and Respondent is Caucasian. Respondent disrupted a faculty meeting conducted by Dr. Napoleon on October 27, 2009, and stormed out of the meeting causing his co-workers to feel uneasy and unsafe. Respondent got upset when Dr. Napoleon declined to interrupt his presentation to answer Respondent's question. Respondent was loud and disruptive (Dr. Napoleon described it as "ranting and raving"). Respondent made a threatening gesture towards Dr. Napoleon as he left the room. Dr. Napoleon testified, credibly, that Respondent's conduct undermined his authority to lead and to provide a safe learning environment for students and for teachers. On October 28, 2009, Ms. Vidal (an assistant principal at Turner Tech) met with Respondent. During the course of the meeting, Respondent expressed that he thought he was being harassed and that he viewed himself as a disgruntled employee. He then made an implied threat that students would suffer on the FCAT because of the manner in which he was being treated. Ms. Vidal was so disturbed by Respondent's comments that she felt that she immediately contacted her principal and put the incident in writing. Respondent was removed from the school effective November 5, 2009 and placed on alternate assignment during the course of the civil rights investigation. On his last day at his worksite, Ms. Vidal and a security guard escorted Respondent to his classroom so he could collect his belongings before he was escorted out of the building. While in the classroom, in the presence of students, Respondent made demeaning comments to Ms. Vidal and told her that she and Ms. Hunter were responsible because they had not protected him from Dr. Napoleon. Respondent's demeanor and his outbursts caused Ms. Vidal to fear for her safety. Based on Respondent's conduct in October and November 2009, Ms. Hunter made a finding that "Probable Cause" existed that Respondent had violation of School Board Rule, 6Gx13- 4A- 1.21, Responsibilities and Duties. A Conference for the Record was conducted by Ms. Hunter on January 5, 2010, and Respondent was directed to "refrain from using inappropriate actions [sic] during the work day" and was issued copies of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, State Board of Education Rule 6B-1.001, FAC, and State Board of Education Rule 6B-1.006, FAC, The Code of Ethics and the Principles of Professional Conduct of the Education Profession. He was also issued a letter of reprimand. Respondent was warned that "noncompliance with this directive will necessitate further review for the imposition of additional disciplinary measures" and "any recurrences of the above infraction will result in further disciplinary action." The matter was referred to the Regional Office to for further review (the conduct investigation). Administrative Placement Respondent remained out on Administrative Placement pending the disposition of the conduct investigation and the civil rights investigation. On March 16, 2010, the School Board's Office of Civil Rights Compliance closed its civil rights investigation, concluding that "No Probable Cause" existed that a violation had occurred. During his administrative placement for the civil rights investigation, Respondent was assigned to his residence and was not working. As part of his administrative placement, Respondent was instructed to call the Region Office twice each day at specific times, once in the morning and once in the afternoon. If he failed to call-in as instructed, he would not be entitled to payment for that day. Respondent did not call either morning or afternoon on seven days on which he was assigned to his residence and not working. On four days he called in the morning, but not in the afternoon. Petitioner initially withheld pay from Respondent for 11 days, but later issued him pay for the four days on which he called in the morning, but not the afternoon. During his administrative placement, Respondent again began to exhibit abusive behavior by making numerous and repeated harassing telephone calls to administrative offices. On March 17, 2010, at 1:00 p.m., M-DCPS Region I Secretary Maria Rosemond received a phone call from Respondent. Respondent asked to speak to Mr. Richard Vidal, who is the administrative director of Region I. Ms. Rosemond told Respondent that Mr. Vidal was not in. Mr. Cohen again asked to speak to Mr. Vidal, and Ms. Rosemond told him he was not there. Respondent then said, "I know Vidal is there. Tell him I will be there in half an hour to get his fucking ass out." Respondent then hung up the phone. Ms. Rosemond was afraid that he was going to actually come to region and harm Mr. Vidal or others at the Region I office. An hour later, Respondent called again and asked to speak to Mr. Vidal. Ms. Rosemond transferred the call to Jennifer Andreu, Administrative Director, and Respondent explained that he was upset about a situation at Turner Tech. Ms. Andreu told Respondent that she would speak to the principal and rectify the problem. Respondent cursed at her and called her incompetent. On March 4, 2010, Respondent called Turner Tech demanding to speak to Ms. Hunter. When the phone call was transferred to Dr. Napoleon, Respondent yelled out, "Why the fuck did they transfer the call to you. I want to speak with Ms. Hunter, not you." When he spoke to Ms. Hunter, Respondent became irate and very loud. Ms. Hunter disconnected the line and never spoke to Respondent again (until the formal hearing). During the call, Respondent referred to Dr. Napoleon as an idiot and demanded that personnel at Turner Tech inform any caller asking about Respondent to respond by informing the caller that that he works at the Region I office. He further threatened that his lawyer would be calling and that the calls would be recorded. Respondent does not dispute his confrontations on the phone with numerous secretaries with whom he spoke. Respondent admitted to the admissibility and the accuracy of the written statements from those secretaries taken during the course of the investigation(s). Respondent believed that he should have been reinstated to the classroom at the conclusion of the civil rights investigation. Because the conduct investigation was still pending, it was not appropriate to place Respondent back into a classroom while the additional issues concerning his conduct were being reviewed. As such, Respondent remained out on alternate assignment pending the disposition of this new investigation. On April 22, 2010, Dr. Marinelli, the Region I superintendent, met with Respondent to discuss his employment status. They reviewed the disposition of the civil rights complaint and formally informed Respondent that a CIU investigation was being conducted regarding his alleged violations of School Board Rules and misconduct. During the meeting, Respondent referred to Dr. Marinelli as "dear," told her to be careful when reading and if she was nervous to relax, and tried to speak over her as she read the allegations of misconduct to him. He further goaded her by telling her that the complaint should have been filed by Mr. Vidal and to get with his attorney because she was getting bad advice. When Dr. Marinelli read the allegation to him, he said "let me see that paper". She discussed the terms and conditions of his administrative placement and advised him that the conduct investigation was a separate proceeding than the civil rights case. Respondent became increasingly agitated as Dr. Marinelli read him his terms and conditions, and then yelled "just give me those papers". When she handed him the papers, he tore them in pieces and said in a loud voice "this is garbage, you are the queen of garbage". Respondent told Dr. Marinelli, "you may be able to click your fingers and your husband may do what you say, but I don't have to do what you say. I'm not afraid of you." Police came into the room due to his loud and disruptive behavior. During the course of the conduct investigation, Respondent was interviewed by CIU investigators. During his interview, he told one of the investigators to just fire him already, and he called the investigators liars. He took out his cell phone and represented that he was on the phone with an attorney and that he was recording their meeting. He even fabricated that one investigator was physically attacking him. Due to his belligerent and aggressive conduct and his verbal tirade, the meeting was terminated and a police officer was summoned to escort him out. On June 8, 2010, CIU issued a report that concluded that "Probable Cause" existed that Respondent had violated School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A1.212, code of Ethics, and School Board Rule 6Gx13-4- 1.08, Violence in the Workplace. Before Respondent was administered disciplinary action as a result of the conduct investigation, he again engaged in additional misconduct toward Dr. Marinelli that led to a final investigation conducted by the School Police. On July 29, 2010, Dr. Marinelli received a phone call from Respondent wherein he was agitated and uttered profanity, including the "F" word, at her. He further yelled, "Don't think I'm afraid of you. What I'm afraid is if you would sit on me." That call was disconnected. He called again, and Dr. Marinelli took the call. Prior to her taking the call, Respondent had told a secretary that Dr. Marinelli could not hide behind a secretary. During that call Respondent continued to yell at Dr. Marinelli, stating "I dare you to do anything. You can't do anything to me." Dr. Marinelli told him to not call again, and he proceeded to call numerous times. When an investigator questioned Respondent during his investigation of the calls on July 29, 2010, Respondent told the investigator that he had called Dr. Marinelli a "fucking fat cow." That investigation was concluded with a finding of probable cause that Respondent had violated the rules cited in the Notice of Specific Charges. A Conference for the Record was held with Respondent on August 5, 2010, at the Office of Professional Standards. Following that conference, the superintendent of schools recommended to Petitioner that Respondent's employment be terminated. Petitioner, at its regularly scheduled meeting of September 7, 2010, took action to suspend and initiate dismissal proceedings against Respondent for just cause, including but not limited to, misconduct in office, gross insubordination, violence in the workplace, and violation of the School Board Rules cited in the Notice of Specific Charges. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue In Case No. 92-6291 the Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, on the basis of allegations of misconduct set forth in an Amended Administrative Complaint. The general nature of the charges against the Petitioner are that he engaged in certain criminal conduct, was found guilty of certain criminal conduct, failed to disclose information about his criminal record on his applications for employment and for a teaching certificate, on various occasions improperly touched several female students, and on one occasion used unnecessary force to discipline a male student. In Case No. 93-1227 the Petitioner seeks to suspend and terminate the Respondent's employment as a teacher with the Dade County School Board on the basis of allegations of misconduct set forth in an Amended Notice of Specific Charges. The general nature of the charges brought by the School Board is essentially the same as the allegations in Case No. 92-6291, although there are some differences in the specific details alleged.
Findings Of Fact Background and introductory matters The Respondent currently holds Florida teaching certificate number 286698, covering the areas of physical education and health education. The Respondent's certificate is valid through June 30, 1998. At all times material to this proceeding, the Respondent, John N. Pilla, was employed by the School Board of Dade County. He was initially employed as a Teacher Aide in January of 1969 and continued to work for the School Board of Dade County in several capacities through the 1977-78 school year. Following the 1977- 78 school year, the Respondent worked for other employers for several years. In 1984 he again applied for employment with the School Board of Dade County and was hired as a Substitute Teacher for the 1984- 85 school year. He was rehired in that capacity for the 1985-86 school year. After a break in service of several months, the Respondent was reinstated as a Substitute Teacher in October of 1986. In December of 1986 the Respondent was hired as a Teacher and he continued to be employed as a Teacher until the date of his suspension and termination from employment on February 17, 1993. As noted in more detail in some of the findings which follow, the Respondent was on several occasions given instructions or directives to the effect that he should avoid improper touching of students. Those instructions and directives were always qualified or modified in some way, so that the essence of the instructions and directives given to the Respondent was that he should avoid improper touching, or unnecessary touching, or touching not required by his teaching duties. The Respondent was never given an unqualified order that he was not to touch students under any circumstances. 5/ It has been a policy of the Dade County School Board at all times material to this proceeding that teachers are prohibited from engaging in inappropriate physical contact with students. The Respondent was aware of that policy. Events during the 1976-77 school year During the 1976-77 school year, the Respondent was employed as a teacher at North Miami Junior High. His principal at that school was Freddie Pittman. During the course of that school year several complaints were made to the effect that the Respondent had engaged in inappropriate conversations with female students and that he had engaged in inappropriate physical contact with female students. Mr. Pittman sought authorization to have those complaints investigated and shortly thereafter an investigation was conducted by School Board investigators. Several of the complaining students were interviewed and reported various instances of inappropriate conversations and inappropriate touching. 6/ The Respondent was interviewed by the investigators and denied all allegations of misconduct. The parents of all of the complaining students were advised of the investigation. All of the parents declined to press charges. Several weeks after the conclusion of the investigation, a conference was conducted on April 29, 1977, at which time Mr. Pittman and an Area Director met with the Respondent, reviewed with him the student allegations that had prompted the investigation, and then issued four directives to the Respondent. Those directives were reiterated in a memorandum to the Respondent dated May 2, 1977, as follows: You should refrain from any physical contact with your students unless it is required as part of your teaching duties. You should refrain from any conversations with your students that could be construed as improper, having sexual connotations or could cause the student to be embarrassed. You should refrain from inviting students to your home or to accompany you on personal trips without prior permission of the parent(s) or legal guardian(s). You should refrain from a display of affection towards your students such as holding hands, caressing, walking arm-in-arm, etc. The memorandum of May 2, 1977, also reminded the Respondent that: "It was stated emphatically that strong disciplinary action will be taken if the above directives or their intent are breached." The 1984 application for employment On March 21, 1984, the Respondent signed an Application for Instructional - Instructional Support Employment seeking reemployment with the Dade County Public Schools. The application included the following question: "Have you ever been convicted of anything other than a minor traffic violation?" The Respondent checked the "No" box in response to that question. The Respondent's answer of "No" appears to have been truthful. 7/ In connection with that same application for reemployment, on March 21, 1984, the Respondent also signed a form titled Security Check Authorization And Waiver Of Confidential Records. That form included a question as to whether the Respondent has ever been ". . . convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" In response to that question, the Respondent checked the "No" box. Immediately above the Respondent's signature the form included a statement that "the above entries are true, complete, and correct to the best of my knowledge and belief. . . ," and ended with the following statement: "I understand that a knowing and willful false statement on this form may result in immediate dismissal." For reasons discussed below, the Respondent's "No" answer on the form titled Security Check Authorization And Waiver Of Confidential Records was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize his employment prospects. The 1988 application for educator's certificate On May 11, 1988, the Respondent signed an Application For Educator's Certificate for the purpose of renewing his teaching certificate. The application included the following question: Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges now pending against you other than minor traffic violations? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. The Respondent checked the "No" box in response to that question and did not provide any details about any criminal charges. Immediately above the Respondent's signature the application included the following language: I understand that Florida Statutes provide for revocation of an educator's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. For reasons discussed below, the Respondent's "No" answer on the Application For Educator's Certificate was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize the issuance of his certificate. The Respondent's criminal record In 1982 the Respondent was arrested for misdemeanor trespass as a result of an altercation that took place between himself and his ex-wife's boyfriend in front of the ex-wife's house. On September 29, 1982, the Respondent entered a plea of nolo contendere to the charge of trespass in the Circuit Court of Broward County, Florida. By order issued that same day, the court withheld adjudication of guilt and placed the Respondent on six months of non-reporting probation. On May 15, 1984, the Respondent was arrested and charged with the following violations: (a) leaving the scene of an accident with injuries in violation of Section 316.027, Florida Statutes; (b) culpable negligence in violation of Section 784.05(2), Florida Statutes, and (c) driving on a revoked driver license in violation of Section 322.34(2), Florida Statutes. On May 24, 1984, a two-count information was issued against the Respondent. Count One charged him with leaving the scene of an accident with injuries in violation of Sections 316.027(1) and (2), and 316.062, Florida Statutes. Count Two charged him with driving while license is revoked or suspended (misdemeanor) in violation of Section 322.34, Florida Statutes. The Respondent went to trial on the charges in the information and on August 8, 1984, was found not guilty of Count One and guilty of Count Two. On September 6, 1994, the Respondent was sentenced to two years in prison, an enhanced sentence which was based on prior uncounseled convictions. 8/ The Respondent appealed and on November 6, 1985, the appellate court reversed the sentence and remanded the case for resentencing. On January 17, 1986, the trial court resentenced the Respondent to 30 days time served. Events during the 1989-90 School Year During the 1989-90 school year, the Respondent was employed by the School Board of Dade County as a physical education teacher at Biscayne Elementary School. His Principal at that school was Carlos Fernandez. Near the beginning of that school year, as a result of complaints from two parents, Principal Fernandez had a conference with the Respondent during which he told the Respondent that he should be careful dealing with the female students. Later during that same school year (toward the end of February) three female students sent notes to the Principal's office in which they mentioned either than the Respondent had touched them or they had witnessed the Respondent touch someone else. Once again Principal Fernandez had a conference with the Respondent and told him again that he should be careful dealing with the female students and stressed that allegations of improper touching were very serious matters that could have very serious consequences. Neither of the Principal's conferences with the Respondent were reduced to a written directive. The purpose of the two conferences seems to have been primarily to warn the Respondent to be more careful when he was around female students. 9/ The essence of Principal Fernandez' comments on these two occasions was that the Respondent should be more careful to avoid any touching that could be misconstrued as improper touching. Principal Fernandez did not direct the Respondent that he should never touch any of the female students. Later that same school year, on April 20, 1990, three female students went to the Principal's office and reported that the Respondent had touched one of them on her private parts and that the other two had witnessed it. The matter was reported to several outside agencies, including the local police. The police commenced a criminal investigation, which generated a great deal of publicity about the incident. On or about April 24, 1990, the Respondent was assigned to an alternate work position which did not involve student contact. He remained in that position while the allegations of April 20, 1990, were being investigated. On June 15, 1990, the Respondent was arrested and was charged with three counts of lewd and lascivious assault on a child. The Respondent posted $15,000 bond and was released. His arrest was widely publicized in television and newspaper coverage. On June 28, 1991, the State Attorney dismissed all of the criminal charges against the Respondent. The School Board conducted an internal investigation and concluded that the allegations that formed the basis for the Respondent's arrest were unfounded. The Respondent was returned to a teaching position in the summer of 1991. Events during the 1991-92 school year For the 1991-92 school year the Respondent was assigned to teach a split shift at two schools, Parkway Elementary School and Madie Ives Elementary School. The Principal at Parkway was Jack Silberman. The Principal at Madie Ives was Sally Blonder. During the 1991-92 school year, Principal Silberman met with the Respondent and told him that he should not touch any students in any improper manner and went on to emphasize that the Respondent should watch himself and make sure he did not touch any students in an improper way. In February of 1992 several students at Madie Ives Elementary School complained that the Respondent had touched them improperly or in a manner which they found to be offensive. During the 1991-92 school year there were no such complaints at Parkway Elementary School. One of the students who complained in February of 1992 was S. K. On one or more occasions during the 1991-92 school year the Respondent placed his hands on S. K.'s shoulders 10/ and turned her around in line when she was facing the wrong way. In doing so, the Respondent did not touch S. K.'s breasts, nor was there anything else improper about the manner in which he touched her. The act of turning S. K. around in line was a reasonable act under the circumstances and was within the scope of the Petitioner's duties as a teacher. One of the other students who complained in February of 1992 was M. C. On one occasion during that school year, M. C. walked up behind the Respondent, who was at that time busy watching some other students. M. C. stood quietly behind the Respondent waiting for an opportunity to ask him a question. The Respondent did not know that M. C. was standing behind him. The Respondent took a step backward and accidentally stepped on M. C.'s foot. The Respondent immediately (without looking around behind himself) reached out behind himself with one hand and instinctively tried to prevent himself and whoever he had stepped on from falling down. In doing so, his hand touched M. C. somewhere in the general area of her low back, hip, or buttocks. This touching of M. C. was entirely accidental. The Respondent did not grab, squeeze, or fondle M. C.'s buttocks, nor did he engage in any other improper touching of M. C. On another occasion during that school year, M. C. walked off of the soccer field with a severe limp. The Respondent, concerned that she might have a serious injury, told M. C. to sit down on the sidelines and he asked her where it hurt. She indicated the shin area of one leg, just above the ankle. The Respondent touched her shin to determine whether there was any palpable injury. He did not feel any indication of a serious injury. Thereupon, he suggested that M. C. rub the injured area with her fingers and briefly demonstrated what he was suggesting. The Respondent's actions of touching and rubbing S. K.'s shin was a reasonable act under the circumstances and was an act that was within the scope of the Respondent's teaching duties or, if not technically within his duties, was an act which it was reasonable for him to believe was within the scope of his teaching duties. There was nothing improper about the manner in which the Respondent touched M. C.'s shin. Pending an investigation of the February 1992 allegations, the Respondent was reassigned to teach only at Parkway Elementary School. The Respondent continued to teach at Parkway Elementary School without incident until sometime in mid-April of 1992, when a television station filmed the Respondent and broadcast a news story about the then-pending allegations and the Respondent's prior arrest on charges of lewd and lascivious conduct. A local newspaper also published a story about the pending allegations, prior allegations, and the prior arrest on charges of lewd and lascivious conduct. As a result of the television coverage and pressure from parents, in mid-April of 1992 the Respondent was reassigned to work in a position that did not involve contact with students. He continued to work in that position until February 17, 1993, when the School Board suspended the Respondent and initiated dismissal proceedings against him.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that in Case Number 92-6921, a Final Order be issued to the following effect: Dismissing the charges set forth in Counts Two, Four, Seven, Eight, and Nine; Concluding that the Respondent is guilty of the charges set forth in Counts One, Three, Five, Ten, Eleven, and Twelve; and Imposing the penalty of revocation of the Petitioner's teaching certificate. On the basis of all of the foregoing, it is RECOMMENDED that in Case No. 93-2723, the Dade County School Board issue a Final Order in this case concluding that the evidence is insufficient to establish any of the charges in the Amended Notice of Specific Charges and dismissing all charges against the Respondent. DONE AND ENTERED this 15th day of November, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of November, 1994.
The Issue Whether just cause exists to sustain Respondent’s five-day suspension from employment without pay with Petitioner based on the allegations in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami- Dade County, Florida. Article IX, § 4(b), Fla. Const. Gonzalez started volunteering for the School Board approximately 22 years ago. Eventually, after years of volunteering, Gonzalez was offered a paraprofessional position. Gonzalez worked as a paraprofessional at Sylvania Heights Elementary School (“Sylvania”) for the last seven years. During the 2018-2019 school year, Gonzalez was a pre-kindergarten paraprofessional at Sylvania. Gonzalez’s job duties and responsibilities include, but are not limited to, assisting with the children when needed. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a collective bargaining agreement under the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred August 22, 2019. On August 22, 2019, Gonzalez reported to work early around 7:00 a.m. and went to the Sylvania office to help. She was assigned to morning drop-off duty and instructed to assist the parents and students in the drop-off area. That morning, Gonzalez went to pick up pre-kindergarten children at the north entrance of the school. One pre-kindergarten student was upset and crying when his mother dropped him off at the car line. The student continued to cry as he got out of the car. Gonzalez walked the crying student to drop-off classroom number four, after he got out of the car. As Gonzalez walked the crying student to the classroom, the child continued to cry a lot. Gonzalez dropped off the crying student by forcibly placing him into classroom four with a push, and then continuing to go on to assist with another child. During the drop-off period, Janelle Fernandez-Ramos (“Fernandez- Ramos”), a Sylvania teacher, was in front of classroom twelve looking down the hall and saw Gonzalez drop off the child at classroom four. Fernandez- Ramos believes she saw Gonzalez tug the child by the arm. At the time, she shouted to Gonzalez, “don’t push him,” but Gonzalez did not hear her. That same morning, Barbara Soler (“Soler”), a Sylvania teacher, was standing in the middle of the interior hallway with Gonzalez. Soler was turned away and a foot away from Gonzalez’s left when she placed the crying child in classroom four. Soler heard Fernandez-Ramos scream “don’t push him,” and looked right to see the little boy crying standing in the doorway of classroom four. Soler did not see anything happen between Respondent and the little boy. Soler took the crying student to the end of the hallway. At the time Gonzalez dropped off the student, Damaris Medina (“Medina”) was in the classroom where the crying boy was dropped off. She stood approximately seven feet away facing Gonzalez. Medina clearly observed Gonzalez forcefully shove the crying student into her classroom, and Medina watched Gonzalez proceed on immediately after dropping him off. Later that day, Fernandez-Ramos reported to administration that she thought she saw a pushing incident between Gonzalez and a child. Afterwards, Principal Amor Reyes (“Reyes”) called Gonzalez to the office. Reyes informed Gonzalez that it had been reported that Gonzalez had pushed a child. Gonzalez denied the allegations. Hearing At the final hearing, Gonzalez admitted leaving the crying student in drop-off classroom number four and explained that she left immediately thereafter because she needed to continue helping with another child. Gonzalez credibly testified, “I did nothing.” She explained that she was neither frustrated nor upset that day and did not hear Fernandez-Ramos scream at her. Fernandez-Ramos testified that Gonzalez “tugged the child from the arm into the room.” Fernandez-Ramos explained that it was the beginning of the school day, and it was chaotic in the hallway. She also described the layout and explained that between where she was standing in front of classroom twelve and drop-off classroom four, there was a bathroom and two more classrooms. Fernandez-Ramos testified that she was not sure if she saw Gonzalez push the child because “I was further away; I wasn’t sure if that’s what I really saw.” Medina credibly confirmed and testified that Gonzalez shoved the crying boy into the classroom. Medina testified that her response to the incident was to look back at another teacher to see if she saw it. Medina also explained that she believed Gonzalez was either flustered or frustrated. Medina further testified, “I just think that she didn’t realize maybe the force that she used.” She also testified that the student did not fall and was not injured. She further clarified that once the crying student was in the room, Gonzalez kept going to grab another student. Medina repeated at hearing, “I don’t think she realized it.” Respondent has not been the subject of any prior disciplinary action during her employment by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Miami-Dade County School Board enter a final order issuing a reprimand to Respondent and awarding Respondent back pay for five workdays. DONE AND ENTERED this 23rd day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JUNE C. MCKINNEY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2021. Michele Lara Jones, Esquire School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132
The Issue Whether just cause exists for Petitioner to suspend Respondent, a teacher, for 30 days without pay for pushing a student.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed by the School Board as an eighth-grade teacher at NDM, a public school in Miami-Dade County, Florida. Respondent has taught for the School Board for 15 years without receipt of any prior discipline. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The proposed discipline is based upon conduct occurring on Thursday, March 4, 2014. On that day, 14-year-old eighth-grade student, D.H., entered Respondent's classroom approximately ten minutes late. Respondent told D.H., “You are going to jail.” When D.H. asked why and said he had done nothing wrong, Respondent did not answer and instructed D.H. to immediately leave the classroom. This interaction was observed by other students in the classroom. D.H. exited to the hallway outside of Respondent's class. At or about this same time, substitute teacher Green was walking several students who had been disruptive to other classrooms. Green took a female student to Respondent's class. Green saw D.H. and told him to go into the classroom. Green opened Respondent's classroom door and asked if she could leave the female student with Respondent and he agreed. While Green and Respondent were talking, D.H. attempted to re-enter the classroom as directed by Green. Respondent stood in front of D.H. and told him he was not allowed to enter. D.H. asked why and said he was going to enter. Respondent replied, “You'd have to go through me first. I wanna see that.” D.H. replied, “Man, I ain't studying you, I don't even see you.” Respondent and D.H. then got in a heated verbal exchange. Green tried unsuccessfully to have Respondent calm down and go back in the classroom. Respondent taunted D.H. by saying he was waiting for D.H. to throw the first punch and that he would give D.H. a “beat down.” Respondent escalated the situation by calling D.H. “weak” and saying “You have no power. That's why you always get beat up.” D.H. was visibly upset and Green kept him separated from Respondent. Respondent went back into the classroom and closed the door, but continued making comments, gestures, and laughing at D.H. in front of his classmates. D.H. remained in the hall yelling. Respondent opened the door again and said if D.H. put his hands on him, he would give him a beat down. D.H. moved from behind Green, towards Respondent, and got a few inches from him and said, “I'm right here. What are you going to do?” D.H. did not touch Respondent. Respondent hit D.H. hard with two open hands to D.H.'s chest causing D.H. to stumble several steps and fall into Green. At the time of this incident, Respondent weighed 220 pounds. D.H. was 14 and weighed approximately 140 pounds. Green told another student to call security and then convinced Respondent to go back in his classroom. Green took D.H. to her classroom. D.H. was not physically injured, but was embarrassed. As a result of the investigation, Respondent was suspended without pay for a period of 30 days for misconduct in office, in violation of State Board of Education and School Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Richter Flambert guilty of misconduct in office, suspending his employment without pay for a period of 30 school days, and placing him on probation for a period of one year. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 11th day of December, 2015.
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.
