The Issue The issues in this case are whether Respondent violated section 1012.795(1)(g) and (1)(j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(c)4.; and, if so, what discipline should be imposed.
Findings Of Fact Based upon the demeanor and credibility of the witnesses who testified, the evidence admitted in the record at the final hearing, and the documents officially recognized, the following Findings of Fact are made: Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in an administrative hearing pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 878903, covering the areas of Athletic Coaching and Physical Education, which is valid through June 30, 2025. At the time of the allegations in the Administrative Complaint, Respondent was employed as the athletic director at Evans High School (Evans) in the Orange County School District (District). Respondent was first employed by the District from 2004 to 2008, when he worked at Evans as a basketball coach and physical education teacher. He was re-employed by the District from 2014 until late in the 2017-2018 school year. He worked at Freedom High School (Freedom) as a physical education teacher and assistant athletic director through the end of the 2016-2017 school year. He then was employed at Evans as athletic director for most of the 2017-2018 school year. He resigned on April 5, 2018, pursuant to a settlement agreement with the School Board of Orange County (School Board), which is the District's governing body. Rolando Bailey was the assistant principal at Evans when Respondent was first employed there, and Mr. Bailey was the principal at Freedom when Respondent worked there through the end of the 2016-2017 school year. Mr. Bailey acknowledged "situations" during Respondent's earlier time at Evans and while at Freedom that involved "conflict" and "communications" issues with Respondent and required administrative intervention, but these problems were handled without involving the Employee Relations office (now called the Employee Standards office) to impose discipline. Mr. Bailey left Freedom to become principal at Evans beginning in the 2017-2018 school year. He thought Respondent would be a good candidate for the athletic director position at Evans, because Respondent was familiar with the community and Mr. Bailey thought he would be good at program building, which is what Mr. Bailey thought the athletic department needed. When Mr. Bailey made the move from Freedom to Evans, he brought not only Respondent with him, but also, at least 15 other administrators and teachers. This set a bit of an "us against them" tone between the existing faculty and staff at Evans and the Freedom transplants. Respondent and Mr. Bailey had a close working relationship. The perception among Evans personnel, based on observed interactions between Respondent and Mr. Bailey, was that they were also close personal friends. At the hearing, Mr. Bailey and Respondent both denied being close personal friends, but they were alumni of the same college, members of the same fraternity, and would frequently meet after regular school working hours. Mr. Bailey acknowledged these frequent meetings, although he said that they were work-related: "The role itself gave us the opportunity to talk outside of hours." (Tr. 200-01). These meetings did nothing to dispel the perception among Evans personnel that Mr. Bailey and Respondent were close personal friends. Evans presented challenges for Mr. Bailey as incoming principal. The school had not been performing well academically, with a "D" rating by the state, and he was intent on improving that performance. As for the athletic department, Mr. Bailey saw the need for "program building," noting that facilities were in disrepair and resources such as uniforms and equipment were scarce, resulting in a lack of school pride. Respondent's objective was to turn the Evans sports teams into winning programs. Respondent's charge was to "lead and direct" the athletic department and allow Mr. Bailey to focus on academics. However, Mr. Bailey made a commitment to the Evans coaches who were already in place when Mr. Bailey came over from Freedom. Mr. Bailey told the Evans coaches that the 2017- 2018 school year would be an evaluative year, and there would not be any changes made until after the end of the year. Mr. Bailey committed to personally participating in each coach's evaluation at year-end, along with Respondent, and Mr. Bailey would make the decision then regarding whether changes were needed to move in a different direction. Mr. Bailey was of the view that certain changes would be needed after the evaluative year. For example, he noted that several coaches held more than one head coaching position, which he generally disagreed with except for certain "related" sports, such as cross-country and track, which had separate seasons so one individual could be head coach of both. Mr. Bailey also was of the view that an individual should probably not serve as both a head coach and an administrative dean, although exceptions could be allowed and Mr. Bailey was willing to wait and see if individuals at Evans were handling it well.2 For the 2017-2018 "evaluative" school year, Mr. Bailey was willing— and had committed—to not make changes to conform the staffing to his views, and instead, to await year-end evaluations to make these decisions. Respondent expressed a different view, stating that if it had been up to him, he would have terminated all existing coaches when he started at Evans and he would have made them all reapply. But it was not up to Respondent, and Mr. Bailey's commitment stood. Respondent started working at Evans during the last few days of July 2017. He immediately implemented some changes in how the athletic 2 For example, Mr. Thompson was an administrative dean and head football coach at Evans for years before Mr. Bailey became principal and he remained in both positions after Mr. Bailey became principal. department was run. One change involved employing Ms. Woodard, who came over from Freedom with Mr. Bailey and the others, as assistant athletic director with the responsibility for inputting team roster information, including documenting compliant physicals and grade point averages (GPAs) for the students on the roster. This apparently had the effect of revealing students who were disqualified because they did not meet the minimum requirement of a 2.0 GPA. Previously, coaches were responsible for inputting their own team rosters. The claim asserted at hearing was that coaches were "padding" their rosters with disqualified students3 or inactive students.4 The motive suggested for "padding" a roster would be that for "minor" sports like cross-country, track, swimming, golf, and others, higher roster numbers could result in supplements being authorized for assistant coaching positions. A reduction in roster numbers could mean a reduction or loss of supplements, which could mean that assistant coaches would have to coach on a volunteer basis, or a head coach might have to do without, or without as many, assistant coaches. There was no competent credible evidence proving specific instances of wrongful or inappropriate roster padding.5 3 Respondent explained how students without qualifying GPAs might have been mistakenly listed on rosters showing qualifying GPAs. He acknowledged that coaches did not have access to detailed GPA data, and instead, might input a student's cumulative GPA as shown on the prior year's report card. However, that GPA might include grades for classes that were not eligible for purposes of meeting the minimum GPA required to participate in sports. 4 Ms. Bellamy, the girls' basketball head coach, said she discouraged "her" girls from going out for cross-country, because they "probably" would not be allowed to compete in meets. Her comments were more suggestive of a turf war than credible evidence of roster padding. 5 Several witnesses who were not at Evans until 2017-2018 offered their belief that roster padding occurred before the 2017-2018 school year. The credible testimony established only that when rosters were prepared or updated under Respondent's system beginning in August 2017, inputting updated GPAs resulted in some students being disqualified. Ms. Woodard, who implemented the new system, admitted she was not sure how many supplements were lost or in which sport. She thought cross-country may have lost supplements, but then said the sport previously had four or six supplements and that it had four supplements after she updated the rosters. Whitney Poole claimed that rosters had been padded the previous year, but she did not explain how she could have known that, since she was not at Evans before August 2017, and then was only a math teacher. She did not have any position in the athletic department before January 2018 when she became an assistant coach. In general, Ms. Poole was not a credible witness, and with one exception, her testimony was not credited. Sheree Carter Sheree Carter was a coach and administrative dean at Evans in 2017- 2018, when Mr. Bailey, Respondent, and others came to Evans from Freedom. She had been employed at Evans since 2012. She remains employed at Evans to this day. During the 2016-2017 school year, Ms. Carter held the following positions at Evans: administrative dean over attendance; head coach of girls' cross-country and girls' track; and assistant coach for girls' weightlifting. Ms. Carter was slated for those same positions headed into the 2017-2018 school year. Ms. Carter took comfort from Mr. Bailey's assurance that no changes would be made until he made the decisions after personally participating in the year-end evaluations. Ms. Carter testified that she met Respondent at the end of July, during the two-week pre-planning period before classes started. Within a week or two after they met, Respondent started saying things to let her know that he was interested in her. He made her uncomfortable, and she rebuffed his advances. But rather than discouraging his comments, the intensity and frequency of Respondent's advances escalated. Ms. Carter testified that Respondent would walk by her office, which was at the back of the front office, and he would poke his head in to see if anyone else was with her. Respondent never came into her office if someone else was with her; he waited until she was alone, and then he would come in. His conversation opener was that he was recently divorced and was trying to get his feet wet getting back into the dating game. She responded by saying okay, cool, good luck with that. Respondent then started coming by Ms. Carter's office to ask if she wanted to grab lunch together or come eat lunch in his office. She declined each time he asked. After the rebuffed lunch offers, Respondent started asking Ms. Carter if she wanted to go to the movies with him or grab drinks after work. Again, she turned him down each time. Respondent's next approach was to let Ms. Carter know that he had a sofa in his office, followed by repeated invitations to Ms. Carter to hang out and chill with him on the sofa in his office. These invitations were conveyed with a personal, intimate air. Ms. Carter always turned down these advances and let Respondent know she was uncomfortable with what he was asking. Respondent approached Ms. Carter with these advances not only when she was alone in her office, but also, on the practice fields and in the hallways or courtyard, if she was alone. Respondent only approached Ms. Carter to make these advances when no one else was around.6 Ms. Carter described it as "creepy," like "in a stalking type of way. Like he would just wait for that right moment to approach you when you're by yourself and then throw these advances at me." (Tr. 74). Respondent's stalking-type behavior and frequent approaches affected Ms. Carter's ability to do her job. She delayed or avoided communicating with Respondent about coaching matters, despite needing to communicate with the athletic director. She would check hallways before freely moving around to make sure Respondent was not present, and she took to closing her office door to give the impression she was not there. Ms. Carter's testimony was credible and clear. Her demeanor was earnest and believable. In contrast, Respondent's testimony regarding the advances claimed by Ms. Carter lacked credibility. Respondent was evasive. He frequently avoiding a direct answer to the question, as illustrated by the following: Q: And did you invite her to your office to chill? A: I was hardly ever in the office. I mean, so, it's very hard to chill in there. I was very, very on the go. I was very, very on the go. You know, Mr. Bailey was big on the look and appearance. So there was stuff always that needed to be done with the field and 6 Mr. Bailey testified that he never observed Respondent engage in sexual harassment, but conceded that sexual harassment is not normally something that he sees people doing out in the open. with the cosmetics. So I was hardly ever in the office. The only time I was in the office if I had to be [sic]. But I was hardly ever in the office, so I definitely couldn't be there just to chill because it was just too much work to do. (Tr. 324). * * * Q: Did you ever invite her to eat lunch in your office? A: I never ate lunch. It's hard for me to eat lunch because I had lunch duty and we had three lunches. So, when am I going to eat lunch when I'm constantly being fussed at by Mr. Bailey about not answering e-mails. Because I was never in my office so my e-mails were forwarded to Ms. Woodard so I didn't have to hear from him about why I don't answer e-mails. So I never ate lunch during the day. (Tr. 327). Respondent avoided answering the questions posed—whether he ever invited Ms. Carter to chill or eat lunch in his office. Respondent danced around the subject, never denying or refuting Ms. Carter's clear testimony that he had, in fact, invited her multiple times to eat lunch in his office and to chill on the sofa in his office, but she turned him down each time. Respondent did deny that he had asked Ms. Carter to go to the movies7 or out for drinks with him, but he offered weak explanations, which were not persuasive, for why he would not have extended these invitations. When asked if he ever asked Ms. Carter to go to the movies with him, he responded: "No. I was too busy to be trying to go to the movies and live in a whole different county and try to work. You know, Evans was an hour and 20 minutes away. Freedom was 38. So there's no time to go to the movies. Especially with a person you don't know, you know." (Tr. 325-26). And when 7 Ms. Poole, a witness for Respondent who generally went out of her way attempting to testify favorably for Respondent, said that she had been friendly with Ms. Carter at the beginning of the 2017-2018 school year. Ms. Poole admitted that during this time, Ms. Carter told Ms. Poole that Respondent had asked her out to the movies. To that extent, Ms. Poole's testimony was credible, and it corroborated Ms. Carter's testimony. asked if he ever asked Ms. Carter out for a drink, he said: "No, because I don't drink. … I just never had a drink, never smoked. So I don't drink. And because I don't drink, I'm not going to invite somebody out to watch them drink. So." (Tr. 326-27). Respondent's testimony on these points was less credible than Ms. Carter's testimony, and her testimony is credited. Ms. Carter testified that her discomfort with Respondent's advances came to a head at a soccer game, when he approached her and once again asked her out for drinks, and she got upset. She said that she blew up, emphatically reiterating (punctuated with curse words) that she had told him before she was not interested and expressing her frustration that he had not yet accepted the message that she wanted him to stop making advances at her. This was on a weeknight during the week of December 4, 2017. On Friday, December 8, 2017, Respondent went to Ms. Carter's office and told her: (1) that she was immediately removed, mid-season, from the assistant coach position for weightlifting, though she could keep the supplement; (2) that they would be moving in a different direction and she would no longer be head coach for girls' cross-country (which had ended its season one month earlier); and (3) that they would evaluate her position as head coach for girl's track after the spring. Respondent told Ms. Carter that he and Mr. Bailey had made these decisions because Mr. Bailey did not want her coaching and serving as an administrative dean at the same time.8 Ms. Carter was very upset because she loves coaching. She broke down crying and was so distraught, she was unable to perform her job duties to supervise during either lunch periods that day. Ms. Carter believed that 8 Respondent admitted to delivering this news to Ms. Carter, although he said it was in a routine meeting in his office that he had scheduled to give Ms. Carter her end-of-season evaluation for coaching girls' cross-country (conflicting with Mr. Bailey's clear testimony that he always participated in evaluations, which were done at the end of the year). Curiously, Respondent testified that his evaluation had no meaning, and its only purpose was to give coaches something for possible future employers wanting to see evaluations. Respondent failed to explain, if the meeting was only to address a meaningless end-of-season evaluation for one sport, why he used the occasion to deliver meaningful consequences or why he addressed more than that one sport. Respondent took this action to retaliate against her because she had rebuffed his advances, particularly after her strong rebuke of him earlier that week. Up to this point, Ms. Carter had confided in two different colleagues regarding Respondent's advances and her discomfort with them, but she had not lodged a formal complaint against Respondent with Mr. Bailey. She was concerned that Mr. Bailey would take Respondent's side in a dispute because of their longstanding relationship and apparent close personal friendship. Previously, when she had confided in Mr. Thompson, he had told her she should talk to Respondent regarding her discomfort, but she had tried that repeatedly. When she confided again in Mr. Thompson upon being reduced to tears on December 8, 2017, this time he told her she should not be talking with colleagues rather than going through proper channels, and he urged her to file a complaint. Ms. Carter followed that advice, submitting a complaint in an email to Mr. Bailey, which she sent to him just after midnight, very early on Monday morning, December 11, 2017. She asked if she could meet with Mr. Bailey to discuss what Respondent had told her regarding her coaching responsibilities and her concern that Respondent had taken this action because she had turned down his advances. Directly contradicting Respondent's claim, Mr. Bailey testified that he did not make the decision to remove Ms. Carter from her coaching duties during the 2017-2018 school year, nor did he direct Respondent to tell Ms. Carter in December—in the middle of the "evaluative year"—that she could not remain as coach and administrative dean.9 Instead, as he had committed to do at the beginning of the year, Mr. Bailey waited until the end of the school year to have the conversation with Ms. Carter about changes going forward. At that time, he informed her that he did not want her to continue in the dual roles of coaching and administrative dean in the 2018- 9 When Mr. Bailey found out that Respondent had that conversation with Ms. Carter on December 8, 2017, he had a meeting with Respondent to find out why he did that. 2019 school year. Ms. Carter wanted to remain in coaching to continue building her programs. With Mr. Bailey's agreement, she gave up the administrative dean position and returned to classroom teaching the next school year so she could continue coaching. Mr. Bailey was a witness for Respondent and he attempted to be supportive of Respondent in his testimony. However, Mr. Bailey clearly and directly contradicted Respondent's claim that he had instructed Respondent to remove Ms. Carter from coaching on December 8, 2017. Mr. Bailey was surprised by Ms. Carter's email reporting that Respondent had done so and had attributed the decision to Mr. Bailey. After meeting with Ms. Carter, Mr. Bailey reported Ms. Carter's complaint to the Employee Relations office for investigation.10 In contrast to the "situations" involving Respondent when he was first at Evans and again while at Freedom, which were handled by administrative interventions without involving Employee Relations, this time Mr. Bailey found it necessary to involve Employee Relations. Jamila Mitchell Jamila Mitchell, Ph.D., also provided testimony regarding inappropriate statements and conduct by Respondent that made her feel very uncomfortable and that interfered with her doing her job. Dr. Mitchell has been working at Evans since 2014. Her doctorate degree is in computer science. She has been the computer science instructor at Evans and the sports media sponsor. She held those two positions during the 2017-2018 school year. She was not a coach or assistant coach. As sports media sponsor, Dr. Mitchell is involved in all sports-related media, including film, photography, social media, and the school's website. 10 Two separate investigations were initiated: the first addressed alleged sexual harassment and retaliation by Respondent, pursuant to the District's responsibilities under civil rights laws as Ms. Carter's employer not to commit unlawful employment practices. When that investigation was completed with a finding of probable cause to believe there was sexual harassment, Mr. Ganio, then-manager of the District's Employee Relations office, completed an investigation into whether Respondent had engaged in misconduct, which would provide just cause for the School Board to take action against him as a District employee. Her responsibilities include managing sports-related website content and ensuring information is disseminated for all sports-related events. She must keep up with schedules, rosters, college recruiting activities, and events such as college scholarship signing days and awards banquets. Frequent communications with the Evans athletic director are essential to her job duties, at least by the time sports activities are in full swing after the first couple of weeks of each school year. Dr. Mitchell testified that beginning in September 2017, when her job required her to be in frequent communications with Respondent, he started saying and doing things that made Dr. Mitchell uncomfortable. On several occasions, Respondent referred to Dr. Mitchell as his "little Mexican." Dr. Mitchell is not Mexican. Respondent would say this when passing her in the hallway, if they were both at a game or event, or when he came to her classroom. Sometimes she was alone when he said this, but sometimes other people overheard what Respondent said. She was offended by Respondent's words, and also, uncomfortable having to explain to others who heard Respondent call her his little Mexican that she was not Mexican, but was biracial. Despite taking offense, she tried to ignore it or laugh it off. Respondent frequently came by Dr. Mitchell's classroom during her planning period when she was the only one there. At least initially, they would discuss sports media matters. But then the conversations would turn to Respondent telling Dr. Mitchell that he "liked the way her butt looked" in the pants she was wearing that day, or how whatever she was wearing accentuated some part of her body. She tried to change the subject back to work, but his comments made her feel weird and "creeped out." Respondent's frequent comments about her clothing and body impeded communications regarding sports media issues. Respondent's comments also caused Dr. Mitchell to stop wearing form-fitting clothing, pants that were a little bit tight, or shirts cut a little bit low.11 She began wearing loose clothing and when Respondent came by her classroom, she stayed seated behind her desk so he would not comment on "how her butt looked." Her discomfort and worries distracted from needed communications and interfered with getting the job done. It got to the point where Dr. Mitchell avoided communicating in person with Respondent, resorting to communicating by text or phone call. Dr. Mitchell described the "tipping point" for her was when she was walking through a courtyard to go to the front office and Respondent was coming out of the front office. Dr. Mitchell was wearing her hair down (loose), which she rarely did. When they passed in the courtyard, Respondent commented that he liked it when she wore her hair down because it gave him something to grab onto. There were other people in the courtyard—teachers and students—and Dr. Mitchell testified that she just prayed that nobody heard what Respondent said to her. She was highly embarrassed by what she reasonably interpreted as a sexual reference. Dr. Mitchell did not immediately complain about Respondent's inappropriate conduct, in part because she was embarrassed, but also, because she did not know to whom she could complain. She had seen how Mr. Bailey interacted with Respondent, and observed that they seemed to have a very friendly, personal relationship. She was concerned that if she said anything, it would be her job on the line. But when she was contacted by an investigator looking into Sheree Carter's complaint, who had been told that Respondent may have also harassed Dr. Mitchell, she spoke with the 11 Respondent suggested in his PRO that Dr. Mitchell should be faulted for her choice of attire in a school "full of hormonal high school students that most likely has a dress code, stated or implied, for teachers." (Resp. PRO at 28). No credible evidence supports a finding that Dr. Mitchell's attire was provocative, inappropriate, or contrary to any dress code, and none was cited. Respondent's argument is, in effect, that Dr. Mitchell "asked for it"—a classic means to deflect blame and excuse inappropriate sexual conduct, which is, or should be, a relic of the past. Respondent's veiled hint that Dr. Mitchell asked for it is tantamount to a concession that "it" occurred, necessitating an excuse for his behavior. There is no excuse. investigator and provided the same information about Respondent's offensive conduct to which she testified at the hearing. Dr. Mitchell was very credible and genuinely distraught as she described these uncomfortable encounters with Respondent. As with Ms. Carter's specific complaints, Respondent denied (or gave evasive, less-than-clear answers) that he said or did the things described by Dr. Mitchell.12 Respondent's testimony was not as credible as Dr. Mitchell's testimony. Dr. Mitchell's testimony is credited. Jessica Kendrick Jessica Kendrick was the head swim coach at Evans, coaching both the boys' and girls' swim teams, from 2013 through the 2018-2019 school year. Her testimony was fairly narrow in scope, but clear and to the point: when Respondent was the head of the athletics department in the 2017-2018 school year, he made her uncomfortable by standing very close whenever they talked with no one else nearby—that is, when there were no witnesses. Ms. Kendrick is five feet, eight inches in height. Respondent is six feet, one inch tall. He used his height advantage to intimidate Ms. Kendrick, making her feel like he was towering over her when he stood very close and looked down at her. Ms. Kendrick's vivid description was that Respondent would be standing so close to her that she could tell what he had for lunch. Ms. Kendrick's reaction to these close encounters was to back up to create space between Respondent and herself. But Respondent would quickly move forward to close the space she had created. She would inch back again; he would inch toward her to close the gap again. Respondent made Ms. Kendrick feel very uncomfortable. 12 In contrast, the investigative summary of the District's investigation into Ms. Carter's sexual harassment complaint reported that Respondent stated he "does not recall if he made inappropriate comments to [Dr.] Mitchell." (Pet. Ex. 14, Bates p. 35). Although statements of non-party witnesses reported in the investigative summary are hearsay, and thereby limited in use to supplementing or explaining competent evidence, Respondent's statements reported in the investigative summary that was offered against him are party admissions, excepted from hearsay, and admissible for all purposes. See § 90.803(18)(a), Fla. Stat. Ms. Kendrick had been the head swim head coach at Evans for four years before Respondent became athletic director. He made her so uncomfortable when they spoke in person that she went out of her way to avoid him. She told the two assistant swim coaches, Mr. Rivers and Mr. Ross, about her discomfort with Respondent. She asked her assistants to take her place for in-person meetings or discussions with Respondent so she could avoid any more uncomfortable close encounters with Respondent. It affected her job; communications with the athletic director were necessary for her to function effectively as head coach. Ms. Kendrick testified that rather than having to interact with Respondent, if Respondent had continued on as athletic director at Evans, she would have given up the head coaching position. Instead, Respondent resigned, and Ms. Kendrick decided to remain head swim coach at Evans for the 2018-2019 school year. Respondent testified that he had no idea what Ms. Kendrick was talking about. Ms. Kendrick's testimony was more credible than Respondent's and is credited. At the hearing, Respondent made the blanket statement that all the witnesses testifying against him were lying. He claimed that Ms. Carter and Ms. Kendrick were lying to get back at him for changing the procedures to prevent roster padding and costing them coaching supplements.13 He claimed that their colleagues, in whom they had confided and who corroborated their testimony, were also lying. Respondent's attempted attacks on the credibility 13 Ironically, the suggestion that Ms. Carter was mad because she lost supplements as a result of the changed roster procedures was contradicted by Respondent's own testimony. As for her head coaching positions, Respondent testified that head coaches receive supplemental pay irrespective of roster numbers. Ms. Carter might have lost those supplements as a result of Respondent's unauthorized attempt to remove Ms. Carter from cross-country head coach and to threaten removal from track, had those actions stood, but they were reversed by Mr. Bailey. As for the supplement Ms. Carter received as assistant weightlifting coach, Respondent admitted that when he told Ms. Carter she was relieved of her assistant coaching duties mid-season, he told her she could retain the supplement. Respondent's actions had nothing to do with supplements or rosters; Respondent acted to retaliate against Ms. Carter for rebuffing his repeated advances. of the witnesses testifying against him were not persuasive and did not undermine their clear, credible testimony. Most notably, although Respondent claimed some witnesses had a motive to lie to get back at him because of lost coaching supplements, no such motive was or could be attributed to Dr. Mitchell. Dr. Mitchell was not a coach or an assistant coach. Respondent offered no cogent theory to explain why Dr. Mitchell would fabricate her testimony. Respondent's accusation that Dr. Mitchell's testimony was invented does not square with her display of emotions at the hearing. She was visibly shaken and crying when she described her embarrassment with Respondent's sexual innuendos, and when she explained why she did not complain about Respondent at the time. Ulunda Frazier The pattern of behavior evident from the complaints of Ms. Carter, Dr. Mitchell, and Ms. Kendrick is further buttressed, at least generally, by court records regarding Ulunda Frazier and Respondent. Ms. Frazier is a teacher. At the time pertinent to this case, she taught at Oak Ridge High School (Oak Ridge), within the District. At the hearing, Respondent described Ms. Frazier as a longtime personal friend he has known for 15 or 16 years. He said Ms. Frazier used to babysit for Respondent's 15-year-old son when the teenager was an infant and toddler. Respondent admitted that his personal relationship with Ms. Frazier had turned "toxic." He did not offer any details to explain in what way the relationship turned toxic. Instead, alluding to a close intimate relationship gone bad, he said only that his relationship with Ms. Frazier "had become toxic and out of control that was actually birthed out of both of our pains. We -- she was going through an ugly divorce and I was going through my treatments and stuff. And so the relationship had just got toxic and it had -- it was no longer a friendly environment." (Tr. 351). Court records in Frazier v. Crawford, Case No. 48-2018-DR-000923-O, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, were officially recognized. The records reflect that on January 24, 2018, Ms. Frazier filed a Petition for Injunction Against Stalking under section 784.0485, Florida Statutes, seeking to enjoin Respondent from stalking her. That same day, the court issued a Temporary Injunction for Protection Against Stalking. On January 25, 2018, the Polk County Sheriff's Office served the Temporary Injunction, Ms. Frazier's Petition, and a Notice of Hearing on Respondent at his residence. The hearing was scheduled for February 6, 2018, and was held as noticed. Both Ms. Frazier and Respondent attended. At the conclusion of the hearing, the court issued a Final Judgment of Injunction for Protection Against Stalking (Stalking Injunction). Respondent received a copy by hand delivery in open court, as acknowledged by his signature on the Stalking Injunction. He is therefore "deemed to have knowledge of and to be bound by all matters occurring at the hearing and on the face of" the Stalking Injunction. (Pet. Ex. 18, Bates p. 51-52). The Stalking Injunction contains the following finding: "After hearing the testimony of each party present and of any witnesses, or upon consent of Respondent, the Court finds, based on the specific facts of this case, that Petitioner is a victim of stalking."14 (Pet. Ex. 18, Bates p. 47). On that basis, the Stalking Injunction ordered as follows: "Respondent shall not commit, or cause any other person to commit, any acts of stalking against Petitioner, including stalking, cyberstalking, aggravated stalking, or any criminal offense resulting in physical injury or death. Respondent shall not commit any other violation of the injunction through an intentional unlawful threat, word or act to do violence to Petitioner." (Pet. Ex. 18, Bates p. 50). The Stalking Injunction is in effect until February 26, 2021. 14 "A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree[.]" § 784.048(2), Fla. Stat. (2017). Section 784.0485 creates a cause of action for a person who is a victim of stalking to obtain an injunction for protection against stalking. The Administrative Complaint alleged that the Stalking Injunction "reduced Respondent's effectiveness as an athletic director because it limited his ability to travel to that school and perform his duties." The terms of the Stalking Injunction do not support this allegation. While the Stalking Injunction generally and broadly prohibited Respondent from having any contact with Ms. Frazier, including at Oak Ridge where she worked and at her residence (both of which were in Orlando), there is an express exception to the no-contact prohibition, as follows: "The Respondent may go to Oakridge [sic] High School only for a valid business reason. If any contact occurs, it shall be non-hostile contact." (Pet. Ex. 18, Bates p. 49). In several respects, however, the Stalking Injunction contradicts Respondent's testimony. Respondent denied that he would have made advances on Ms. Carter because he was married and had been married to the same woman since 2010. Yet his close personal relationship with Ms. Frazier predated his marriage by five or six years. Respondent testified that Ms. Frazier babysat for Respondent's 15-year-old son when the teenager was an infant. The fact that Respondent got married to someone else five years later did not prevent Respondent from engaging in a first "friendly" and then "toxic" close relationship with Ms. Frazier, or from stalking Ms. Frazier before the Stalking Injunction was issued against him on February 6, 2018. Whatever the details may be regarding Respondent's stalking of Ms. Frazier, it is noteworthy that she lived and worked in Orlando. This belies Respondent's claim that he could not have harassed Ms. Carter with the repeated advances she described, because he would not have had time to go to the movies or out for drinks near where he worked in Orange County. He attempted to paint the picture that he spent every moment in Orange County working or commuting to and from his home in distant Polk County. The Stalking Injunction stands as evidence that, contrary to Respondent's claim, in addition to working at Evans and commuting to and from Polk County, Respondent found time to have a first friendly, then toxic relationship with Ms. Frazier and to stalk Ms. Frazier where she lived and worked in Orange County. Respondent's Separation from the District The investigation into Ms. Carter's complaint identified individuals who were potential witnesses with relevant information or possible victims. After conducting interviews, the District held a pre-determination meeting on March 7, 2018, to share with Respondent the information learned during the investigation and give him an opportunity to respond. Respondent appeared with a union representative, who instructed him not to respond. On March 27, 2018, Respondent was suspended from work with pay while the District completed its investigation. This "Relief of Duty" status is employed when warranted by the seriousness of the allegations. "Relief of Duty" included an immediate suspension of network access, including email. During the process of completing the investigation, the District discovered a new allegation of inappropriate conduct by Respondent. The District learned of Ms. Frazier's Petition and the resulting Stalking Injunction. It held a second pre-determination meeting on April 3, 2018, to inform Respondent that it had learned about the Stalking Injunction. Again, Respondent was given the chance to respond, but again, he refused to say anything on advice of his union representative. On the same day as the second pre-determination meeting, Barbara Jenkins, the District Superintendent, issued a memorandum to the School Board, transmitting a complaint charging Respondent with misconduct in office and conduct unbecoming a public employee, and recommending that Respondent be terminated from employment for the charged violations. Immediately after the complaint and recommendation for termination were released, Respondent negotiated and finalized a Settlement Agreement and General Release (Agreement) with the School Board. The Agreement expressly stated that it was not to be construed as an admission by Respondent or the District of any wrongdoing. Nonetheless, pursuant to the Agreement, Respondent was required to resign as of April 5, 2018, and to tender a written letter of resignation. Pursuant to the Agreement, Respondent agreed "he will not reapply for or accept employment [at a District school] at any time in the future." Respondent also acknowledged that the District would be submitting its investigation into Respondent's alleged misconduct to the Department of Education Professional Practices Commission, as required by section 1012.796(1)(d), Florida Statutes. In form and substance, the Agreement is a common vehicle utilized for resignation of an employee in lieu of the employee having to answer to charges and face the prospect of termination. Respondent attempted to suggest that his resignation was purely voluntary, based on his decision that he did not want to work in a place where people would lie about him. His claim was not credible. Respondent fully understood when he took the position at Evans, along with at least 15 others brought over from Freedom by Mr. Bailey, that there would be an "us against them" air that he would have to overcome. Mr. Bailey attempted to set the stage for developing good relationships with existing Evans coaches and other staff, by deeming the first year an "evaluative year" in which there would not be any position changes until the evaluative year was discussed with Mr. Bailey, Respondent, and the coach at the end of the year. Respondent knew that Evans had challenging problems to overcome, with scarce resources in terms of facilities, equipment, and uniforms, and that he was expected to build winning programs and instill school pride. He knew he was expected to put in place the systems, policies, and procedures that would allow for program building, and he was well aware that his changes would be unpopular with some. It defies logic and credibility for Respondent to suggest that he chose to walk away from his commitment before completing one school year only because existing Evans coaches and assistant coaches were lying about him. Mr. Bailey acknowledged that, as principal, he was compelled to let the investigation process be carried out. As he put it: "[W]hat I performed is my role as a principal. That when there's conduct that's unbecoming of an employee, or an employee feeling as if they have been, in this case, harassed, I'm going to follow the guidance that has been presented to me in my role as the leader of the school." (Tr. 209). He acknowledged that at the culmination of that process, when it was reported to him, he followed the guidance that he was supposed to follow, and as a result, Respondent was no longer at his school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of violating section 1012.795(1)(j) through a violation of rule 6A-10.081(2)(c)4., and imposing the following as penalties: suspension of Respondent's educator's certificate for a period of three years from the date of the final order; probation for a period of three years after the suspension, with conditions to be determined by the Education Practices Commission, which should include a requirement that Respondent take two college level courses, one in professional ethics for educators and one related to women's rights in the workplace; and payment of a $750.00 fine. DONE AND ENTERED this 29th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 S ELIZABETH W. MCARTHUR 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 29th day of January, 2021. Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
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 finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, 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 17th day of December, 1990.
Findings Of Fact The Respondent holds Florida teaching certificate 227677, covering the areas of Chemistry, Biology, and Middle Grades General Science, which is valid through June 30, 1996. Petitioner has been certified to teach in Florida since 1969. On or about February 5, 1979, Respondent was arrested and charged with Disorderly Conduct, a misdemeanor, in Orange County, Florida. Respondent pled not guilty to the charge, waived a jury trial and was tried before the court and found guilty. The count withheld adjudication and on or about May 2, 1979, the Court sentenced Respondent to pay a $350.00 fine, plus court costs. On or about June 24, 1985, Respondent executed, under oath, an Application for Extension of Certificate. Respondent answered "no" to the following question: Have you ever been convicted 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? Respondent was negligent in completing his application in that he failed to acknowledge his 1979 arrest for Disorderly Conduct for which the Court withheld adjudication. The renewal application was completed six years after the incident and Respondent simply forgot to list it on the form. On or about December 25, 1992, Respondent was arrested and charged with Battery, a first degree misdemeanor, following a domestic disturbance with his wife in Seminole County, Florida. Respondent pled nolo contendere to the battery charge. On or about February 11, 1993, the count withheld adjudication and sentenced Respondent to serve six months probation. Probation was successfully terminated on August 23, 1993. On or about September 6, 1993, Respondent was arrested and charged with Aggravated Battery, a third degree felony, and Shooting Into or At a Building, a second degree felony. Respondent pled not guilty to the charges and was tried and convicted on both counts following a trial by jury. On or about May 30, 1994, the Court adjudicated the Respondent guilty of Aggravated Battery and withheld adjudication on the charge of Shooting Into or At a Building. Respondent was sentenced to 3 years in prison on the battery charge (Count I). He was placed on one year probation on Count II and required to pay court costs. The conviction and sentence was appealed to the Fifth District Court of Appeal of Florida. The court upheld the conviction and sentence. However, it did certify a question as one of great public importance to the Florida Supreme Court Respondent testified that he has been a school teacher for more than 25 years and has an outstanding record in the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 231.28(1)(c), (e), (f), (i), (j), Florida Statutes and not guilty of violating Section 231.28(1)(a), Florida Statutes and Fla. Admin. Code R. 6B-1.006(5)(a) and (h). It is further RECOMMENDED that the Respondent's teaching certificate be revoked for a period of 5 years, followed by a period of 3 years probation should the Respondent become recertified in Florida and upon such reasonable and necessary conditions as the Commission may require. DONE AND ENTERED this 22nd day of December, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 22nd day of December, 1995. APPENDIX Petitioner's Proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5 (in part), 6 (in part. Rejected as hearsay and irrelevant: paragraphs 4 (in part), 5 (in part), 6 (in part). Respondent did not file proposed findings of fact. COPIES FURNISHED: John A. Knight, Pro Se 1817 Harding Avenue Sanford, Florida 32771 Barbara J. Staros, General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Dr. Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen Richards, Administrator Professional Practices Services 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact On March 5, 1976 the U. S. District Court for the Southern District of Florida found Petitioner guilty of possession and distribution of cocaine and sentenced him to confinement for two years (Exhibit 10). This sentence was reduced by Order entered 3 March 1977 to 16 months (Exhibit 11). Following his release from prison, Petitioner returned to school and received a Bachelor of Arts degree in communications from Florida International University in August 1978. Petitioner's testimony and evidence he presented consisting of excerpts of his writing ability demonstrated that he is articulate and probably more competent to teach than some who presently hold certificates.
Recommendation RECOMMENDED that the denial of the application of George Derek Joy for a teaching certificate be upheld and the Petition for a certificate be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of September, 1979. K. N. Ayers Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1979. COPIES FURNISHED: Mr. George Derek Joy 7035 N. E. 4th Court, Apt. 1 Miami, Florida 33138 Mr. Hugh Ingram Administrator Professional Practices Council Room 3, 319 W. Madison Street Tallahassee, Florida 32301
The Issue The issues here are as presented through an administrative complaint brought by the Petitioner against Respondent. In particular, it is alleged that Respondent falsified applications related to her certification as a teacher in the State of Florida and her employment as a teacher in the Duval County, Florida School System. In particular it is alleged that Respondent falsely answered questions pertaining to her arrest or conviction for a misdemeanor offense in Jacksonville, Florida. For these acts, Respondent is alleged to have violated Section 231.28(1), Florida Statutes, in that she has obtained her teaching certificate by fraudulent means and been guilty of personal conduct which seriously reduces her effectiveness as an employee of the school system. Moreover, it is alleged that further fraud was committed related to Rule 6B- 1.06(5)(a)(g) and (h) Florida Administrative Code, pertaining to fraudulent statements or disclosures.
Findings Of Fact On April 28, 1981, Shirley Lambert made application to be certified as a teacher in the fields of health education and physical education. This certification request was made with a State of Florida, Department of Education Teacher Certification section. A copy of the application may be found as Petitioner's Exhibit No. 2, admitted into evidence. As part of the application, question V asks, "Have you ever been convicted 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?" Lambert responded in the negative. Lambert also signed the application form below that portion of the application related to notarization which states "I understand that Florida Statutes provide revocation of a teacher's certificate if evidence and proof is established that the certificate is obtained by fraudulent means. (Section 231.28 FS). I certify that all information pertaining to this application is true and correct." As a result of this application, Respondent was issued a teacher's certificate from the State of Florida, Department of Education in the field of physical education. The date of the issuance was June 25, 1982, for a period ending June 30, 1983. A copy of this certificate is found as petitioner's Exhibit No. 1, admitted into evidence. In fact, as was known to the Respondent at the time of making the application for certificate, she had been arrested and charged with petit theft for an offense that occurred on April 11, 1978, the taking of clothing less than $100 in value. The basis of the charge was Section 812.014(2)(c), Florida Statutes. Respondent pled guilty to this offense and was given a ten day jail sentence which was suspended and probation imposed for a period of six months. The particulars of this disposition may be found in Petitioner's composite Exhibit No. 3, which contained records of court related to the offense. On August 10, 1982, Respondent made application for employment with the Duval County School Board, Jacksonville, Florida. A copy of that application may be found as Petitioner's Exhibit No. 4. This application had a similar question related to prior criminal offenses. The application stated, "Have you ever been convicted 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?" Again, the question was answered in the negative although Respondent was aware of the aforementioned criminal violation at the time she answered this questionnaire. The application was signed by Respondent and at the place of signature, Lambert was exposed to the language at the signature line which states "I certify that all information on this application is true and accurate and recognize that it is subject to verification and that my employment and/or continuance thereof is contingent upon its accuracy." Not being mindful of her prior criminal involvement the Duval County School System hired Respondent as a substitute teacher on September 13, 1982. Her criminal record was later disclosed to the administrators within that system and her employment was terminated effective October 12, 1982. Had the administration known of the prior criminal involvement, they would not have hired Lambert in view of the fact that they could be more selective and not choose a person with a prior criminal involvement, given the high number of applicants for jobs within their system. Dalton Epting, Director of Certified personnel of Duval County Public Schools, felt that a prior conviction of a misdemeanor offense of petit larceny would be in violation of standards required of teachers in Duval County. Likewise, the offense of petit larceny would be sufficient grounds to deny certification when requested of the State of Florida, Department of Education. Respondent testified that in the course of the final hearing and indicated in discussing both applications which are at issue that she read those applications too fast and made a mistake in answering the questions related to her prior criminal involvement. She felt in effect that she had not read the applications carefully. Moreover, in giving her explanation at final hearing, even though she recognized her prior criminal involvement in the way of arrest and the plea of guilty to petit theft, she stated that she did not feel the questions in the applications related to misdemeanors. She was of the opinion that the questions pertained to more serious crimes. Given the plain language of the questions in the application for certification with the State of Florida and the application for a position with the Duval County School Board and the precautionary statements related to accuracy and possible penalties for inaccuracy, Respondent's explanations are not plausible. Respondent's comments do not constitute a reasonable excuse for having falsified her applications for certification and employment.
