The Issue Whether Respondent, a teacher, committed the violations alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent has held Florida Teaching Certificate 720034 at all times material to this proceeding. His certificate covers the area of sociology and is valid through June 30, 2002. The Broward County School Board (School Board) employed Respondent as a classroom teacher pursuant to a professional service contract at all times material to this proceeding. Respondent began his employment with the School Board on February 14, 1992. On March 8, 1999, Respondent was placed on administrative leave. On July 20, 1999, the School Board suspended Respondent's employment without pay. On August 17, 1999, Respondent requested a formal administrative hearing, and the matter was referred to DOAH. Petitioner offered no evidence as to the outcome of the DOAH proceeding or as to Respondent's current employment status with the School Board. 1/ Respondent's first teaching assignment was at Apollo Middle School, a public school in Broward County, where he taught for three years. His performance was evaluated several times during his tenure at Apollo. Each evaluator found Respondent to need improvement in the area of classroom management. Respondent was transferred to Attucks Middle School, a public school in Broward County, where he was working during the 1998-99 school year. Respondent's assignment for that school year was to teach a class of seventh-grade students who had behavioral problems in other settings. Respondent, a former college and professional basketball player who is approximately 6'7" tall, believed he was given that assignment, in part, because his stature would intimidate the students in that class. On or about November 25, 1998, D. S., a male student in Respondent's class, was misbehaving. Respondent chased D. S. around the classroom, shoved him into a wall, and physically threw him out of the classroom. During the 1998-99 school year, Respondent encouraged the students in his class to settle their differences by fighting, using the expression "fight till you die, death row." He also permitted the students in his class to gamble by flipping coins and playing cards. On or about March 8, 1999, Respondent was placed on administrative leave by the School Board. While on administrative leave, Respondent worked as a counselor for an after-school program located at the Whiddon-Rogers Education Center (Whiddon-Rogers). The City of Fort Lauderdale administered that after-school program and employed the staff for the program. The City of Fort Lauderdale employed Respondent while he worked for the after-school program. K. F. J. is a married female. At all times material to this proceeding, K. F. J. was dually employed as a counselor at Whiddon-Rogers and as a teacher's assistant. The School Board employed K. F. J. during the part of the day that she worked as a teacher's assistant. The City of Fort Lauderdale employed K. F. J. during the part of the day that she worked at the after-school program. K. F. J. testified that her duties as a counselor at Whiddon-Rogers were ". . . to play with the kids with different recreations [sic], ping pong, volleyball, basketball, different games, stuff like that." The after-school program at Whiddon- Rogers was a child care program. Petitioner failed to establish that the after-school program was an educational activity. While he was employed at Whiddon-Rogers, Respondent repeatedly sexually harassed K. F. J. This behavior regularly consisted of unsolicited sexual advances and offensive behavior implying Respondent's sexual desires. K. F. J. emphatically rebuffed Respondent's advances. Respondent created a hostile, intimidating, abusive, offensive, or oppressive environment for K. F. J., who was justifiably afraid of Respondent. On April 28, 1999, Respondent made sexually inappropriate comments to K. F. J., asking her to give her a hug and to let him grab her "ass." K. F. J. became very angry and an argument ensued. Respondent made vague threats against K. F. J. and her husband. C. C., a seventeen-year-old male student, interceded between Respondent and K. F. J., telling Respondent to leave her alone. James Parrish was the head custodian at Whiddon-Rogers in April 1999. Mr. Parrish heard the verbal exchanges between Respondent and K. F. J., and he saw C. C. intercede between the two of them. Later that afternoon, Respondent came to believe that C. C. had punctured a tire on Respondent's automobile. Respondent saw C. C. leaving Whiddon-Rogers and ran after him. Mr. Parrish and a male counselor named Dennis ran after Respondent. Respondent caught C. C., grabbed him by the neck, and was about to strike C. C. when Mr. Parrish and Dennis physically restrained Respondent. Petitioner filed the Administrative Complaint that underpins this proceeding on July 20, 2000. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. The final order should revoke Respondent's teaching certificate. DONE AND ENTERED this 6th day of September, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 2001.
Findings Of Fact The Respondent, Raymond Grosneck, is a teacher at Safety Harbor Middle School in Pinellas County. He has been a teacher there for 26 years and has been on continuing contract since August, 1970. (However, his active teacher certificate expired on or about June 30, 1992, and has not been renewed, so he is not teaching during the 1992/1993 school year as of this time.) While a teacher at Safety Harbor, the Respondent's only discipline has been a written reprimand in 1985. See Finding 11, below. On or about March 6, 1992, towards the end of one of the Respondent's classes, two female pupils asked the Respondent if they could "clap" the classroom's chalky blackboard erasers. The Respondent gave them permission. As usual, the pupils bent down and leaned out the classroom window and began clapping the erasers, both against each other and against the side of the outside of the building. While they were doing this, the Respondent warned them not to get any chalk dust on the bricks to either side of the window, as opposed to on the white, painted stucco directly below the window. When they finished, the Respondent walked over to the window to check and saw chalk dust on the bricks. The Respondent angrily confronted the pupils in a loud voice about the chalk and about having disobeyed his instructions. (It is not clear whether he gave his instructions to the two pupils before or after they already got the chalk on the bricks; in any event, both he and other school authorities previously had given the students those instructions.) He asked which of the two did it. When they both denied it, he angrily and in a loud voice ordered the one he suspected to come to the window, where he still was standing, and look at the chalk marks, which he viewed as the proof that she was lying. When the pupil hesitated, he walked over to her and grabbed her upper arm in a motion that had the effect of a combination slap, which made an audible slapping sound, and grab. He then pulled the pupil over to the window, using a jerking motion. The episode resulted in a temporary reddening of the skin of the pupil's upper arm where it had been "slap/grabbed." The Respondent's words and actions upset the pupil. When tears began to well up in her eyes, and the Respondent knew she was about to cry, he told her to go get the assistant principal responsible for the class. Instead, the pupil went, crying on the way, to the nearest washroom to wipe her tears and try to regain her composure. There, she saw another pupil who asked her what happened. When she told him that the Respondent had hit her, he went to get the assistant principal. The assistant principal was not there, but a counselor was, and she was led to the washroom. Soon after, the Respondent came looking for the pupil, as she had not yet returned to the classroom with the assistant principal. When he joined the group, the counselor informed him of the pupil's accusation that he had hit her. The Respondent denied hitting the pupil and insisted on going directly to the assistant principal to resolve the matter once and for all. The assistant principal still was not in his office when the group arrived. In ensuing discussion with some other pupils in the class who had gone looking for the pupil after the period ended to see how she was, some of the other pupils contradicted the Respondent's version of what happened. Angrily, the Respondent stormed out of the office, slamming the door hard enough to jar loose a picture hanging from the office wall. On his way out, the Respondent was heard to say words to the effect that he did not "need this job." During the lunch period that followed, some of the pupils discussed the events that had transpired. About a week later, the Respondent and his attorney met with school administrators and other education officials in the school principal's office concerning the incident. At the meeting, the Respondent was informed as to what the school's investigation of the incident had revealed to that point and as to the charges being considered. As the Respondent and his attorney exited the office, while still in the area of the administrative offices suite, the Respondent was heard by three pupil aides to ask his attorney rhetorically, "was that a bunch of bullshit, or what?" The Respondent did not know that the students were there, but he knew pupil aides ordinarily work there, and he asked the question in a normal tone of voice, not giving thought to the possibility that it would be overheard by pupils at the school. As a result of these incidents, the Respondent's rapport with at least some of his pupils, who began to think that he was "mean," temporarily was impaired. Within a short time, however, he reestablished a good teaching relationship with most, if not all, of his pupils. 1/ For a short time after the incident, the school principal felt it necessary to monitor the Respondent more closely to insure against a repetition. The evidence is not clear whether closer monitoring actually occurred. In any case, no further problems involving the Respondent were observed. The use of corporal punishment by a teacher is against the official policies of the Pinellas County School Board. It also is against the official policies of the Pinellas County School Board for a teacher to lay hands on students to control their movement except as necessary to prevent physical injury to themselves or others. The 1985 reprimand indicates that the Respondent was accused of getting angry and yelling in the face of a pupil for getting chalk dust on several desk tops and then denying doing it. He also was accused of angrily tipping over the desk in which the pupil was sitting and leaning backwards. At the time, the Respondent denied tipping the desk over backwards but admitted losing his temper and losing control of the situation. He agreed to apologize to the pupil for losing his temper. It was not determined whether the Respondent in fact tipped the desk over backwards. Some of the witnesses to the incident said he did, but about the same number said he did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order reprimanding the Respondent, Raymond Grosneck, for the matters referred to in Conclusions 18 and 19, but refraining from suspending him. RECOMMENDED this 20th day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of October, 1992.
The Issue Whether just cause exists to sustain Respondent's five-day suspension from employment without pay with the Petitioner based on the allegations in the 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. 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"). Weatherspoon has been a physical education teacher for 28 years with the School Board. In 2013, Weatherspoon started working at Hibiscus Elementary School ("Hibiscus"). He is the only physical education teacher for grades two through five. Weatherspoon runs a structured class. When students arrive at their physical education class, they are expected to stand in a straight quiet line, and then go into the physical education shelter, and sit down for taking roll. Weatherspoon uses a chain of consequences for student misbehavior. It progresses from warnings, to exclusion from activities, to parent contact, then to detentions and referrals. During the 2018-2019 school year at Hibiscus, K.C. was a fourth-grade student in Respondent's physical education class. On or about March 5, 2019, K.C. and another student got into a physical fight. Weatherspoon excluded K.C. and the other student from activities and put them in time-out for two days, which meant K.C. had to sit next to the wall during the physical education class instead of participating. After K.C.'s punishment was completed, he should have been rejoining the activities for the physical education class. However, on March 7, 2019, when rejoining the class, K.C. attempted to be first in line and started fighting with student J to be first. Weatherspoon responded to K.C.'s second fight by instructing K.C. to go back to the time-out area against the wall because he was putting his hands on somebody again. Weatherspoon also instructed student J to go to the time-out area for his misbehavior and student J went to time-out. K.C. repeatedly told Weatherspoon "no" and refused to go back to the time- out area after Weatherspoon instructed him to do so. Another student, B.C., walked over during Weatherspoon's attempt to have K.C. go back to time-out and then B.C. informed Weatherspoon that K.C. had done his time already. Weatherspoon responded to B.C., "Don't get involved with this. This is not your concern." Afterwards, B.C. immediately turned around, and walked back to sit down. Next, Weatherspoon redirected his attention back to K.C., repeatedly instructing him to go sit at the wall. K.C. continued to respond "no" he was not going to sit at the wall. Weatherspoon firmly directed K.C. to sit at the wall with a raised voice. Upset, K.C. walked out of the gym instead of following Weatherspoon's instructions for his misbehavior. Weatherspoon called security to report that K.C. had left the class early. The next day, Weatherspoon attended a parent teacher conference with Principal Veronica Bello ("Bello") and K.C.'s parents about his interim failing grade in physical education. After the discussion about K.C.'s interim failing grade, the meeting turned confrontational and K.C.'s father accused Respondent of pushing K.C., which was the first time Weatherspoon was made aware of any allegation he pushed K.C. The School Board investigated the K.C. pushing allegation. During the investigation, written statements were taken from five students, including B.C., that were in K.C.'s physical education class. None of the students reported witnessing Weatherspoon push K.C. on March 7, 2019. K.C.'s written statement dated March 11, 2019, stated that Weatherspoon pushed him twice and that Weatherspoon also pushed B.C. once on March 7, 2019. Ultimately, based on the investigation, probable cause was determined to support the allegation that Weatherspoon pushed K.C. On August 22, 2019, a conference-for-the-record ("CFR") meeting was held to discuss the investigative findings. Respondent was present at the CFR. Following the CFR, the School Board adopted the recommendation that Respondent be suspended for five days for the March 7, 2019, incident because Respondent had been previously counseled and issued a directive not to interact with children by pushing them. Prior Disciplinary History On or about September 13, 2018, Weatherspoon received a written reprimand after a School Board investigation concluded that he shouted, kicked, and pushed a student. Weatherspoon's reprimand, in pertinent part, directed Respondent to: Strictly adhere to all Miami-Dade School Board Policies; specifically, 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 3213, Student Supervision and Welfare. Cease and desist from using physical means to discipline or redirect students while working for M-DCPS; Cease and desist from placing your hands on students for any reason while working as an employee of M-DCPS; and Safeguard emotional and physical well-being of students at all times while working as an employee of the District. * * * 8. Conduct yourself; both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. P9-10 Hearing At hearing, K.C. admitted that "[he] got pretty upset" when he was told to go to time out again. K.C. unpersuasively claimed during the hearing that Respondent pushed him in the stomach one time. However, K.C.'s testimony is contrary to his written statement from the investigation where he wrote that Weatherspoon pushed him twice.1 Similarly, K.C. also testified Weatherspoon pushed B.C., which conflicts with B.C.'s testimony at hearing that Respondent "did not touch [her]."2 The undersigned does not credit K.C.'s testimony based on his contradictory statements about the events on the date of the alleged incident, which diminishes the trustworthiness of his testimony. At hearing, Weatherspoon provided credible testimony regarding the events of March 7, 2019, and his interactions with K.C. Weatherspoon testified that an oral dispute occurred between K.C. and him. Weatherspoon credibly explained that after directing K.C. to go to time-out several times, K.C. repeatedly refused to go to the wall stating, "no," and then K.C. walked out of the physical education class. Weatherspoon also credibly made clear, "I did not touch him." Findings of Ultimate Fact Weatherspoon's reliable testimony precludes a finding that he acted in the fashion alleged in the Notice of Specific Charges. Accordingly, the undersigned finds that Weatherspoon's credible and persuasive testimony established that no physical contact was made with K.C. on March 7, 2019. Therefore, no competent substantial Pet. Ex. 8. The undersigned finds that B.C.’s testimony that Weatherspoon pushed K.C. is not credible because the evidence shows that B.C. was walking away back to her seat when the alleged incident occurred. Additionally, B.C. did not report any pushing incident in her original student statement. Moreover, B.C. only reported an alleged incident when questioned by an investigator approximately seven months later. Likewise, the undersigned rejects K.C.’s mother’s testimony because if a parent had been informed that their child was pushed by a teacher, in all likelihood, that allegation would be the first thing and main topic discussed at the parent teacher meeting before any failing grades, not the discussion topic at the end of the meeting. evidence established any factual basis for the School Board's proposal to suspend Respondent for five days for the offenses charged in the Notice of Specific Charges.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing the Notice of Specific Charges, rescinding its previous decision to suspend Respondent without pay for five days, and awarding him back pay. DONE AND ENTERED this 17th day of March, 2021, in Tallahassee, Leon County, Florida. 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 17th day of March, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The following findings of fact are based upon the evidence presented at hearing, the demeanor of witnesses, and stipulations of the parties: Respondent was employed by Petitioner as a 4th and 5th grade teacher under continuing contract since June, 1980. During his employment, he was evaluated as a satisfactory teacher. The parties stipulated that on May 19, 1987 at approximately 1:45 a.m., Respondent committed fellatio with another male adult. They further stipulated that Respondent does not claim that this was a single, isolated occurrence. The incident on May 19, 1987 took place in North Shore Park, St. Petersburg, which is an area known to the local police as a place for homosexual activity. North Shore Park is approximately 6 1/2 miles from the elementary school at which Respondent taught fourth grade. It is a public park extending from Sixth to Nineteenth Avenues, North, and bordered on the east by Tampa Bay and on the west by Shore Drive. The park has a public swimming pool, tennis courts, parking areas and a public beach. On the morning of May 19, 1987, Respondent drove to the park, parked his car, and walked from Seventeenth Avenue, North, to Thirteenth Avenue, North, where he encountered the other male. Respondent believed they were alone. They walked to a bench on the public beach and engaged in fellatio. Police Officer Thad Crisco, St. Petersburg Police Department, observed Respondent performing fellatio on the other male. Officer Crisco, who was patrolling the park on foot, was approximately twenty feet away from Respondent. He observed them with the use of an infra-red night scope, but he testified that the night scope was not required or necessary to observe the incident due to the moonlight and other available lighting. Crisco was behind a palm tree, but had a clear line of vision over a four foot high sea wall which separated him from Respondent and the other male. There was also a lit public parking area about 100 feet from where Respondent was observed. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place. On or about May 27, 1987, Respondent was suspended with pay by Superintendent Scott Rose, who also recommended his dismissal by the School Board, effective June 25, 1987. The Superintendent's action and recommendation resulted from the incident on May 19, 1987. The School Board approved the Superintendent's recommendation for dismissal on June 25, 1987, and Respondent was informed of this action by letter dated July 21, 1987. Respondent timely sought this hearing on his dismissal. On or about June 12, 1987, Respondent entered a plea of no contest to the criminal charges arising out of the incident at North Shore Park, and an Order Withholding Adjudication of Guilt and Placing Defendant On Probation was entered on June 12, 1987 in Case Number CTC 87-10343 MMANO, County Court for Pinellas County. Respondent was placed on six months probation, ordered to perform ten hours of community service and prohibited from entering any parks in Pinellas County. Respondent's probation was terminated early by Order entered on October 15, 1987 since he had satisfied all terms and conditions of his probation. By letter dated October 26, 1987, the Commissioner of Education found there was no probable cause "at this time" to suspend or revoke Respondent's teaching certificate in connection with this incident. Within the month following the incident in North Shore Park and his arrest, Respondent was the subject of one article in the St. Petersburg Times and three articles in the Tampa Tribune, Pinellas Edition. The parties stipulated that the St. Petersburg Times has a daily circulation of approximately 285,000 in Pinellas County, and the Pinellas Edition of the Tampa Tribune has a daily circulation of approximately 11,000. Based upon the testimony of Robert Welch, Principal of Bay Point Elementary School, Nancy Zambito, Director of School Operations, and Superintendent Rose, all of whom were accepted as experts in education, it is found that Respondent's action on May 19, 1987, his arrest and plea of no contest, and his being placed on probation are inconsistent with a public school teacher's responsibility to set an example for the students he teaches, undermines the confidence, trust and respect which parents and students should have in a teacher, evidences extremely poor judgement for one in whose custody the educational welfare of fourth graders is placed, and can reasonably be expected to impair his effectiveness as a teacher and lead to serious discipline problems with students if he returns to the classroom. Respondent even expressed concern about the embarrassment his actions caused for the school district. Through the testimony of Thomas Auxter, Ph.D., who was accepted as an expert in ethics, Hernan Vera, Ph.D., who was accepted as an expert in sociology, and Harry D. Krop, Ph.D., who was accepted as an expert in psychology, Respondent sought to establish that the incident on May 19, 1987 was a private, consensual act, without demonstrable or intentional injury or infliction of harm upon others outside the act. Dr. Auxter expressed the opinion that the act was not immoral since Respondent had a reasonable belief that no one else was present, and the act was not demonstrably or intentionally harmful. According to Dr. Auxter, one has to consider the time and place where an act occurs, as well as a person's intentions, in determining if it is an immoral act; circumstances are very important. Thus, an act performed at 1:45 a.m. may be a private sex act, while the same act at 1:45 p.m. in the same place may be clearly intentional, observable and offensive to others, and therefore be immoral. Dr. Vera expressed the opinion that Respondent's behavior did not constitute public behavior since the circumstances were private. Again, the time of the morning when the incident occurred was critical to Dr. Vera's opinion. Dr. Krop testified that school children would not necessarily be negatively affected by the incident, and that Respondent is capable of mitigating the effect of the incident on his ability to teach. The testimony of Drs. Auxter and Vera concerning the private nature of the act of fellatio in this case is specifically rejected based upon the testimony of Officer Crisco and Sergeant Earl J. Rutland, St. Petersburg Police Department. Crisco was only twenty feet away from Respondent at the time of the incident, with a clear line of sight. Respondent and the other male were clearly visible in the moonlight without having to use the night scope. The act occurred in a public park, and on a public beach. According to Sergeant Rutland, North Shore Park has a great deal of public activity at all hours of the day and night, and much of that activity results in complaints to the police. The very fact that Respondent went to this area at 1:45 in the morning looking for someone to engage in homosexual activity with, confirms the fact that members of the public frequent this area at all hours. Thus, he had no reasonable expectation that they would be alone on this beach, even at 1:45 a.m. Respondent did commit a sexual act, fellatio, in public on May 19, 1987. Dr. Vera testified that cultural norms require that sexual acts be performed in private, and Dr. Auxter acknowledged that just one violation of said norm can bring a person into disgrace and disrespect. The testimony of Dr. Krop concerning the effect of this incident on children and parents, and on Respondent's ability to teach, is outweighed by the testimony of Welch, Zambito, and Superintendent Rose. Krop was not accepted as an expert in education, and demonstrated little experience working with public school children and their parents when compared with the vast experience of Petitioner's experts.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing Respondent from employment. DONE AND ENTERED this 19th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. APPENDIX (DOAH Case No. 87-2849) Rulings on Petitioner's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5. Adopted in Findings of Fact 2, 3. 6-9 Adopted in Findings of Fact 6, 14. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in Finding of Fact 11. Adopted in Findings of Fact 3, 14. 14-16 Rejected as cumulative and unnecessary, but considered as the basis for accepting the witness as an expert in education. 17-20 Adopted in Finding of Fact 12. 21 Rejected as irrelevant and also hearsay. Rulings of Respondent's Proposed Findings of Fact: 1-2 Adopted in Findings of Fact 1, 4, 8. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary. Rejected in Findings of Fact 6, 14. Adopted and Rejected in Findings of Fact 6, 14. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant. 7-8 Adopted in Finding of Fact 12. Rejected as irrelevant. There was evidence that Respondent initially considered resigning and then Petitioner acted expeditiously to take disciplinary action. These events may have affected the level of community reaction. Adopted in Findings of Fact 7, 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. 13-14 Rejected as unnecessary and as not based upon competent substantial evidence. While the ethical analysis set forth by Dr. Auxter represents one expert's opinion, it was not shown that his opinion, albeit an expert opinion, competently and substantially represents 2500 years of study and thought. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected. Rejected as Finding of Fact 14. 17-30 Adopted in part and Rejected in part in 13 and 14; otherwise Rejected as irrelevant and unnecessary. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected. Adopted in Finding of Fact 13. Rejected in Finding of Fact 15. Rejected as unnecessary since Dr. Krop's ultimate opinion is rejected. 35-38 Rejected in Findings of Fact 12, 15. 39 Rejected as argument on the evidence rather than a Finding of Fact. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 33518-4688 Bruce P. Taylor, Esquire School Board Attorney Post Office Box 4688 Clearwater, Florida 33518-4688 Robert F. McKee, Esquire Charleen C. Ramus, Esquire KELLY & McKEE, P.A. Post Office Box 75638 Tampa, Florida 33605-0618 =================================================================
The Issue The issue for determination is whether Respondent should deny Petitioner's application for a teaching certificate.
Findings Of Fact 1. Petitioner submitted her application for a teaching certificate on May 26, 1993. Respondent notified Petitioner of its proposed denial of the application on April 5, 1994. Respondent's proposed agency action is based on events that occurred while Petitioner was teaching in the Florida public school system in 1988 and 1989. Background From August, 1988, until February, 1989, Petitioner taught Spanish as a first-year teacher at Lake Wales Senior High School ("Lake Wales") in Polk County, Florida. In the fall of 1988, Petitioner met Brian Keith Swinney. Mr. Swinney was a junior at Lake Wales but was not one of Petitioner's students. Mr. Swinney attended school in the morning and worked as a professional entertainer at Cypress Gardens in the afternoon. Although Mr. Swinney was not one of Petitioner's students, Mr. Swinney and Petitioner knew each other at school. Mr. Swinney's Spanish teacher shared a classroom with Petitioner. Mr. Swinney was also a varsity cheerleader, and Petitioner was a chaperon for the cheerleaders when they traveled to various games. Petitioner and Mr. Swinney dated and developed a relationship that included sexual relations. Sexual relations began on October 4, 1988. In November or December, 1988, Mr. Swinney began residing with Petitioner. On or about February 1, 1989, Petitioner resigned her position with Lake Wales. On February 12, 1989, Petitioner and Mr. Swinney were married. At the time of their marriage, Petitioner was 22. Mr. Swinney was 17 years old on February 17, 1989. Mr. Swinney's parents consented to the marriage. Mr. Swinney's mother drove Mr. Swinney and Petitioner to South Carolina where he and Petitioner were lawfully married. Petitioner and Mr. Swinney moved to California. A child was born of the marriage, and Petitioner remained married to Mr. Swinney for approximately five years. Following a period of separation, Petitioner and Mr. Swinney were divorced on February 28, 1994. After separating from Mr. Swinney, Petitioner relocated to Lee County, Florida. Petitioner applied for a teaching position with the Lee County School District. The District issued a letter of eligibility, and Petitioner began teaching in May, 1993. Current Qualifications And Good Moral Character Petitioner applied for a teaching certificate on May 26, 1993. Petitioner satisfies all of the academic and professional requirements for a teaching certificate. She is over the age of 18. She received her bachelor's degree from Florida Southern College, an accredited institution of higher learning. She executed the required loyalty oath for the state and federal constitutions. Her application was properly completed and executed. Petitioner is competent to perform the duties, functions, and responsibilities of a teacher. Petitioner taught school in several localities in California. Petitioner taught for the Lee County School District during the 1993-1994 school year. She taught as a full-time teacher at Paul Lawrence Dunbar Middle School ("Dunbar") during the day. At night, she taught in the District's night school program at Cape Coral High School ("Cape Coral") in Cape Coral, Florida. Petitioner was recommended for re-employment as a teacher with the Lee County School District for the 1994-1995 school year. Petitioner is a "very capable" and "creative" teacher. Both Renee Highbaugh, Assistant Principal at Dunbar and Petitioner's immediate supervisor, and Belle DeKoff, Administrator for the adult education program at Cape Coral, testified to Petitioner's competence and capability. Respondent stipulated that Petitioner is an "excellent" teacher. Petitioner is of good moral character. Ms. Highbaugh testified to Petitioner's good moral character. Her testimony was credible and persuasive. Petitioner's good moral character is further evidenced by her exemplary teaching record in California and Florida since 1989. Alleged Violations In Notice Of Reasons In 1988 and 1989, Petitioner did not fail to make a reasonable effort to protect students from conditions harmful to their learning. Petitioner and Mr. Swinney did not engage in public displays of affection on campus. Nor did either of them create any condition that was otherwise harmful to students' learning. Petitioner did not fail to protect Mr. Swinney from conditions harmful to his learning. Mr. Swinney's grades did not decline during his relationship and subsequent marriage to Petitioner. Mr. Swinney voluntarily chose to marry Petitioner and obtain his G.E.D. He did so with his parents' permission. Mr. Swinney joined the United States Air Force and was honorably discharged. He is a licensed helicopter pilot. He attends helicopter flight school in California for certification as a commercial instrument instructor. He has a job waiting for him in his desired field when he graduates in February or March, 1995. Mr. Swinney is remarried and resides with his wife in California. Petitioner did not intentionally expose Mr. Swinney to unnecessary embarrassment or disparagement in 1988 and 1989. Petitioner passed notes to Mr. Swinney on occasions. Once, the two kissed in an empty classroom. The notes and kiss were not observed by students or faculty. In January, 1989, Mr. Swinney transferred to Winter Haven High School ("Winter Haven"). He transferred so that he and Petitioner could continue seeing each other without jeopardizing Petitioner's job. By January, rumors about Petitioner's relationship with Mr. Swinney had begun at Lake Wales, and Mr. Swinney wished to avoid further rumors. Mr. Swinney used a false address to enroll at Winter Haven. School officials discovered the false address but permitted Mr. Swinney to attend Winter Haven anyway. At Winter Haven, a male teacher told Mr. Swinney in front of the class, "I know what happened with you in Lake Wales, and that crap's not going to work over here." Mr. Swinney was embarrassed, but his embarrassment was intended by the teacher at Winter Haven and not by Petitioner. Petitioner did not exploit her relationship with Mr. Swinney for personal gain or advantage. Petitioner did not pressure him into their relationship. Mr. Swinney testified that he entered the relationship by his own volition. Petitioner did not commit an act of gross immorality or moral turpitude in 1988 and 1989. Mr. Swinney was a professional entertainer. He periodically lived outside his parents' home with their permission. He frequented adult nightclubs where alcohol was served. He was sexually active and engaged in sexual intercourse with approximately four other partners before meeting Petitioner. Mr. Swinney's parents consented to his marriage to Petitioner and assisted the couple in getting married. Assuming arguendo that, in 1988 or 1989, Petitioner either lacked good moral character, committed an act of gross immorality or moral turpitude, or otherwise violated the provisions of law or rules of the State Board of Education, the prior incidents, standing alone, do not support a conclusion that Petitioner currently lacks the good moral character required for a teaching certificate. Since 1989, Petitioner has demonstrated her good moral character through an exemplary teaching record in California and Florida. Petitioner is a valuable asset to the Lee County School District. The District observed Petitioner in the classroom, recommended Petitioner for re- employment, and is satisfied that Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Petitioner not guilty of the allegations in the Notice Of Reasons and authorizing the issuance of Petitioner's teaching certificate, forthwith. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. DANIEL MANRY 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 13th day of January, 1995.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2014.
The Issue The issue in this unusual case is whether the district school board has just cause to dismiss Respondent from his position as a teacher for administering corporal discipline to his own child in the child’s classroom, where Respondent was acting at all relevant times in his personal, nonprofessional capacity as a parent.
Findings Of Fact The Miami-Dade County School Board (“School Board” or the “district”), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to this matter, including specifically the 2018- 2019 school year, Menelas was employed as a chemistry teacher at Dr. Michael Krop Senior High School pursuant to an annual contract. The incident at issue in this case occurred on February 15, 2019, at Madie Ives K-8 Academy in the classroom of Patricia Costa. Ms. Costa has been a teacher for more than 20 years in Miami-Dade County. During that time, she has taught multiple subjects and held leadership positions at her school. In 2018-2019, Ms. Costa taught sixth-grade U.S. History. One of her students that year was Menelas’s son, T.M. T.M. has been a disruptive and poorly behaved student from preschool onward, despite repeated interventions. Menelas has taken his son to numerous professionals for counseling and other forms of treatment, including medication, to no avail. T.M.’s behavioral issues have caused Menelas substantial emotional distress over the years. T.M. had been in Ms. Costa’s fourth-grade class two years earlier. As a result, Ms. Costa not only had experience with T.M.’s disruptive behavior, but she knew Menelas as well, through parent-teacher communications. There is no direct evidence in the record, however, bearing on whether Ms. Costa knew that Menelas was a fellow teacher. Neither she nor Menelas was asked about that at hearing. As an experienced teacher, Ms. Costa possessed the skills to deal with T.M.’s misbehavior, most of the time. If Ms. Costa called T.M.’s parents, therefore, as she sometimes did, it was because she was at her wit’s end. So, when Ms. Costa phoned T.M.’s mother on February 13, 2019, to request assistance in bringing T.M. under control, it was a sign that the child’s behavior had been especially bad recently. Whatever measures T.M.’s mom took in response to Ms. Costa’s call, however, failed to have the desired effect. Consequently, on the afternoon of February 14, 2020, Ms. Costa sent an email to Menelas in which she wrote: Hope all is well. I have been able to handle [T.M.] without having to involve you this year. However, his behavior lately has gotten out of control. Yesterday, he was disrespectful towards me and I spoke to mom on the phone. That had no affect [sic] on his behavior today. Constant talking during class to the point where I sent him to another teacher and gave him a detention. Secondly, he continues to make a loud clicking sound in other students’ ears and has been asked various times to stop, but he doesn’t. Please have a stern conversation with him regarding his behavior. It is disruptive to the class and hinders the other students’ learning. Should you have any questions, please feel free to contact me. (Emphasis added).1 Menelas replied to this email the following day and might have spoken with Ms. Costa on the telephone as well.2 There is no dispute regarding the substance of their communication, which consisted of Menelas’s request to 1 In light of the circumstances, Ms. Costa’s request that Menelas “have a stern conversation” with T.M. could reasonably be understood as a plea for Menelas to use harsher methods in punishing T.M. than either she (the experienced teacher) or the boy’s mom had been able to employ. Whether Ms. Costa was euphemistically suggesting that Menelas give his son a spanking is unknown, and the undersigned is not inferring that such was her communicative intent. However, the subtext of the email is reasonably clear: teacher and mother have tried, and failed, to subdue T.M., and they now want dad to lower the boom. 2 He does not remember the phone call, and she does not remember the email. Menelas read the reply email out loud at hearing during his testimony, but the writing is not in evidence. observe T.M. at school in Ms. Costa’s classroom that afternoon, and Ms. Costa’s consent to this request. The district asserts that Menelas “used his position as a teacher to convince his colleague [Ms. Costa] to allow him to observe her classroom.”3 The evidence, however, does not support such a finding. As mentioned, Ms. Costa did not testify that she even knew Menelas was a teacher, much less that she had given him preferential treatment for this reason. But even if she were aware of Menelas’s occupation, there is no evidence that Ms. Costa allowed Menelas to visit her classroom as a professional courtesy. In her testimony, Ms. Costa referred to Menelas as “dad,” never as a colleague or fellow teacher; she neither stated, nor implied, that she treated Menelas differently from any other parent. After finishing work on February 15, 2020, Menelas left his school and drove to T.M.’s school, where he checked in at the main office, and then proceeded to Ms. Costa’s classroom. Arriving at 2:45 p.m., which was 15 minutes before the bell, Menelas immediately walked to the front of the class and began addressing the students. Menelas introduced himself as T.M.’s father (not as a teacher) and spoke to the class in that capacity only. There is no evidence that any student in Ms. Costa’s classroom (besides T.M., of course) knew that Menelas was a teacher. Also, while there is no evidence that Menelas sought Ms. Costa’s permission to address her class, Ms. Costa did not interrupt him or ask him to stop. At a minimum, Ms. Costa acquiesced to Menelas’s taking the floor, and it is not unreasonable to infer that she welcomed this, as it soon would have been apparent that Menelas’s plan was to have a “stern conversation” with T.M. for misbehaving in class. In his remarks to the class, Menelas apologized for his son’s disruptive behavior, which, he told the students, had long been an embarrassment to Menelas, and which he taken many steps to correct, without success. 3 Pet.’s Prop. Rec. Order at 5. Addressing his son, Menelas told T.M. that because he had caused his father embarrassment and refused to listen, T.M. would now be embarrassed by Menelas in front of his peers. Menelas directed T.M. to stand before the class, remove—and hand over—his belt, and drop his pants. T.M. complied.4 Menelas instructed T.M. to count to ten, and, as the boy did so, Menelas spanked him with the belt, one strike per number, for a total of ten blows. Ms. Costa did not physically intervene in Menelas’s chastisement of T.M. or verbally object to what she was witnessing; she merely watched.5 There is no evidence that the students reacted to the spectacle in ways that would suggest they were either frightened of Menelas or thought T.M. was in danger; no one screamed or fled, for example. Some students, in fact, actually laughed. Putting aside for now the question of whether Menelas’s act constitutes just cause for termination, there is no dispute that T.M. was not injured by the spanking. Menelas testified that that he had no intention of physically harming his son, and this testimony, being consistent with the objective facts and otherwise credible, is credited as truthful. The manifest objective of this discipline was to embarrass T.M. After spanking T.M., Menelas directed the boy to apologize to Ms. Costa, which he did. In her reply to T.M., Ms. Costa said something to the effect that “it shouldn’t have come to this.” Although there is some disagreement as to Ms. Costa’s exact words, it is undisputed that she did not admonish Menelas or question the propriety of his conduct. 4 T.M. was wearing boxer shorts and thus was not exposed by pulling down his pants. The incident, in other words, did not involve any nudity, and no charge to that effect was brought against Menelas. 5 At hearing, Ms. Costa testified that she tried to call Menelas’s name, as if to stop him, but he became extremely angry and started to yell. The undersigned rejects this testimony, which conflicts with other evidence in the record. The undersigned notes, as well, that in the “Summary of Conference-for-the-Record” dated September 11, 2019, the following statement is included in the allegations against Menelas: “Teacher [i.e., Ms. Costa] did not intervene in the incident.” T.M. returned to his seat, and Menelas left the classroom without incident. The entire episode, from Menelas’s arrival until his departure, lasted approximately five minutes. It is reasonable to infer, and the undersigned finds, that the spanking itself likely took no more than about 15 seconds, assuming that T.M. probably counted off at one-second intervals. Some time would have been taken up, as well, by T.M.’s removing his belt and dropping his pants, and by T.M.’s post- spanking apology to Ms. Costa. Subtracting the few minutes (at most) that these matters would have taken from the five minutes comprising the whole incident leads to the conclusion that Menelas must have spoken to the class for at least a couple of minutes before carrying out the physical discipline. This strongly implies, and it is found, that the spanking was not a sudden and unexpected outburst, but the foreseeable culmination of a series of deliberately unfolding actions pointing towards such an outcome. Any reasonable observer should have seen it coming. The point is that Ms. Costa had reasonable opportunities to take protective measures, and yet she did nothing. If anyone in that classroom had a clear duty to protect the students from potential harm, moreover, assuming there was a genuine threat, it was Ms. Costa. At hearing, Ms. Costa explained her inaction as the result of being shocked by the unusual situation, the likes of which she had never encountered. The undersigned does not disbelieve Ms. Costa’s testimony in this regard, but she does, clearly, have an obvious personal interest in playing up the “shocking” nature of Menelas’s conduct.6 The undersigned is unable to find that Ms. Costa, a veteran teacher whose performance has been exemplary, as far as the record shows, would stand by and allow her students to be placed in harm’s way by an unarmed parent visiting her classroom. The more reasonable inference is that, in the 6 Ms. Costa’s bias arises from that fact that she, herself, could be charged with misconduct in office, for failing to take reasonable measures to protect her students. event, Ms. Costa did not regard Menelas as a real danger to the students, including T.M., because she realized that he was using shame, not violence, as a means of bringing T.M. to heel, which was a common goal of them both. After class, Ms. Costa reported the incident to her assistant principal. In due course, reports were made to the Department of Children and Families (“DCF”) and to the police. Given the absence of any injury to T.M., it is not surprising that, after being informed of the incident, DCF would not take the case, and the state attorney’s office declined to prosecute. It is found as an ultimate fact that Menelas’s spanking of T.M. constituted reasonable corporal punishment of the kind parents are privileged to administer in the state of Florida. Menelas continued teaching without problems for the remainder of the 2018-2019 school year. He received an annual contract for the following school year and remained on the job until his suspension on November 20, 2019. There is no evidence that the incident in Ms. Costa’s classroom had any adverse effects on Menelas’s effectiveness as a teacher. Menelas has no record of prior discipline relating to his employment with the district. DETERMINATIONS OF ULTIMATE FACT The district has failed to prove its allegations against Menelas by a preponderance of the evidence.
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 exonerating Blucher Menelas of all charges brought against him in this proceeding, reinstating Menelas to his pre-dismissal position, and awarding Menelas back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 28th day of August, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 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 The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
