The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 9th day of January, 2004.
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and, if so, what disciplinary action should be taken against him pursuant to Section 231.2615(1)(i), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Chavero holds a Florida Educator's Certificate that is currently valid. Chavero was employed as a public school teacher in the Dade County School District at all times pertinent to this proceeding. In the 1999-2000 school year, Chavero taught English and math at Braddock. All of his students were enrolled in an Alternative Education Program known as the STARS Program. The STARS Program is offered as a last resort to students who, because of bad behavior, poor grades, or other problems, need extra assistance and attention to remain in school. If a student in the STARS Program fails to perform satisfactorily, he or she may be expelled. Chavero believed that student misconduct and a general lack of discipline at Braddock (and other schools) were preventing pupils from learning and teachers from teaching. Consistent with his pedagogic philosophy, Chavero aspired to teach his students not only the content of a course but also such social skills as proper behavior, dress, and manners. Braddock's Principal, Dr. Donald Hoecherl, disagreed with Chavero's view that behavior and social skills should be taught in the classroom. Principal Hoecherl told Chavero not to teach his students how to conduct themselves in socially acceptable ways. Apparently, the principal's admonition reflected the administration's sensitivity to the perceived "low self-esteem" of students in the STARS Program. Chavero was expected to be flexible and to refrain from confronting students or "coming on too strong" with them. This type of teaching was completely out of character for Chavero. Predictably, he was not able to abandon the authoritarian style that suited his personality and beliefs. As a result, Chavero developed a reputation as a strict disciplinarian — but "nothing out of the ordinary," in the words of V. D., a former student who testified against him at hearing. Transcript ("T-") 49. Indeed, according to this same student, Chavero's classroom rules were "pretty much the same" as other teachers'. T-49. Students began to complain, however, that Chavero was making too frequent use of a form of punishment called an “exclusion.” An exclusion is a temporary in-school suspension that the teacher may impose when a student is disrupting the class. Upon being excluded, the misbehaving student must leave the classroom and spend the remainder of the period in detention at another location. Assistant Principal Jane Garraux investigated the student complaints and concluded that Chavero’s use of the exclusion was excessive. She also determined that most of Chavero’s students (as many as 70 percent) were failing his classes. By comparison, other teachers in the STARS Program were giving passing grades to between 80 and 95 percent of their students. Following her investigation, the assistant principal initiated an evaluation of Chavero in November 1999 that led to the identification of performance deficiencies in the area of classroom control. He was placed on a 90-day performance probation and, as a result, needed to correct the identified deficiencies within that period or face termination of employment. See Section 231.29(3)(d), Florida Statutes. While on performance probation, Chavero was observed and evaluated several times. In the opinion of his assessors, Chavero’s performance continued to be unsatisfactory. In February 2000, he resigned. 2/ The Commissioner sought to prove that, in the months leading to his resignation, Chavero: (a) refused, on occasion, to answer students’ questions about lessons and assignments; (b) used the exclusion tool excessively, in relation to other teachers in the STARS Program; (c) demanded more from his students in terms of academic performance and classroom decorum than his colleagues were requiring; and (d) became angry and raised his voice in class at times. This is not a proceeding to terminate Chavero’s employment, however, and poor performance does not constitute a basis for discipline under Section 231.2615, Florida Statutes — not, at least, without more than has been shown here. 3/ Therefore, even if all the general deficiencies in Chavero’s performance that the Commissioner attempted to prove at hearing were found to have existed, none amounts to a violation either of Rule 6B-1.006(3)(a) or of Rule 6B- 1.006(3)(e), Florida Administrative Code. There were, however, two specific occasions on which Chavero allegedly lost his temper and threatened the physical safety of a student or students. Together, these particular instances are the heart of the Commissioner’s case against Chavero and therefore require closer scrutiny. The First Period Incident On January 27, 2000, Chavero gave his first period class a mid-term examination. Near the end of the period, Chavero allowed the students who had completed the test to talk quietly, provided they would not bother the few who were still working. V. D. and J. A., who were sitting together in the back of the room, began conversing with one another. The class soon began to get loud, and Chavero told the students to be quiet. He held up V. D. and J. A. as an example of how he would like the class to behave, saying: "Why can't you guys whisper like J. A. and V. D." The class momentarily calmed down but quickly became noisy again. Chavero began to get angry. He told the students to lower their voices. V. D. continued to talk, and Chavero yelled at her to be quiet. Instead of obeying, V. D. denied that she had been talking loudly, which caused Chavero to yell at her some more. V. D. asked Chavero not to scream at her; he did not stop. At some point during this exchange, V. D. said to Chavero: “What the f*** is your problem?” Enraged, Chavero slammed his fist on a desk and moved quickly toward V. D. Some students, including V. D. and J. A., recall that as Chavero approached V. D., he raised his open hand, palm facing forward, as if to strike her. A number of other students, however, in written statements prepared on January 27, 2000, made no mention of the teacher’s raised hand. For his part, Chavero adamantly denied having raised his hand against V. D. V. D.’s immediate reaction suggests that she was not intimidated or frightened by Chavero’s rapid approach, regardless where his hand was. V. D. testified that she “lost [her] temper,” “got up and . . . exchanged a few words” with Chavero. T-55. More important, it is undisputed that Chavero did not touch V. D. Rather, he returned to his desk at the front of the class to write a “referral” — that is, a written account of V. D.’s misconduct that would be provided to the assistant principal for further handling. V. D. gathered her belongings and left the room. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to hit V. D. or to cause her unnecessary embarrassment or disparagement; that V. D. suffered any physical or emotional injury or felt embarrassed or degraded; or that V. D. was in danger of likely being harmed in Chavero’s classroom on January 27, 2000. As a result, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety. The Third Period Incident R. G. was a student in Chavero’s third period math class. R. G.’s academic performance was extremely poor, and he frequently was excluded for bad behavior. He was defiant and aggressive, openly challenged Chavero’s authority, and, on at least one occasion, threw staples at the teacher. One day — the precise date of this event is not clear, but it apparently occured after January 27, 2000 — R. G. was in Chavero’s class, sitting in the back, not doing his assignment. Because R. G. was refusing to do his schoolwork, Chavero wrote a referral to send him to the assistant principal. R. G. testified that before Chavero wrote the referral, he had insulted R. G. by saying that his (R. G.’s) mother was raising an animal. However, another of Chavero’s former students named F. V., who witnessed this particular incident and testified at hearing on the Commissioner’s behalf, did not hear Chavero make this remark to R. G. Indeed, F. V. testified that he had never heard Chavero make rude or disrespectful comments to his students, nor had he observed Chavero become angry with the class. Chavero denied having insulted R. G., and the evidence supports his denial. After Chavero had filled out the referral, R. G. rose from his seat and approached Chavero’s desk. R. G. reached out to snatch the referral from Chavero’s hand in a manner that, according to F. V., was apparently intended “just to . . . annoy” Chavero. T-93. Specifically, as R. G. grabbed for the referral, he made a feint toward Chavero’s grade book. As F. V. explained, it was well known that Chavero “didn’t like it when people touched [his] grade book.” T-93. In the process, R. G. may have hit Chavero’s hand, although he denied having done so. Reacting to R. G.’s provocative act, Chavero slapped R. G.’s hand away. R. G. was neither injured nor embarrassed by this. Rather, he became angry and began yelling and cursing at Chavero, insulting him. Both R. G. and F. V. recalled that Chavero then said to R. G., “Oh, hit me if you’re a man,” or words to that effect. Chavero, however, testified that his exact statement to R. G. was: “[I]f you try to be physical you’ll get in trouble.” T-124. Chavero was the most credible witness of the three. After Chavero warned R. G. not to become physical, R. G. left the classroom. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to harm R. G. or to cause him unnecessary embarrassment or disparagement; that R. G. suffered any physical or emotional injury or felt embarrassed or degraded; or that R. G. was in danger of likely being hurt in Chavero’s classroom on the day of the third period incident. To the contrary, it appears that R. G.’s aggressive and provocative behavior may have threatened Chavero’s physical safety. Consequently, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Administrative Complaint against Respondent Armando M. Chavero. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. 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 15th day of February, 2001.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher who failed immediately to notice that her paraprofessional had left a child behind during a student activity is guilty of negligent supervision; if the alleged wrongdoing is proved, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Miami-Dade County School Board ("School Board"), 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 case, Respondent Luz M. Morales ("Morales") was employed as a teacher in the Miami-Dade County public schools. During the 2013-2014 school year, and for many previous years, Morales taught at the Neva King Cooper Educational Center, a school that provides special educational services to students with severe intellectual disabilities. Among the services provided at Neva King Cooper is community-based instruction ("CBI"), which entails taking students with disabilities into the community on a regular basis to learn and practice basic skills in real-life settings. On May 6, 2014, Morales took her six students on a CBI trip to the local Walmart. Accompanying Morales on this trip, to help supervise and control the students, were two paraprofessionals, Natalie Glover and Efrain Cestero. The group left the school on a bus at around 9:30 in the morning. The plan was to explore books and toys in the store, purchase a snack in the McDonald's Restaurant located inside Walmart, and return to school by around 11:00 a.m. Upon arriving at Walmart, Ms. Glover informed Morales that she was having some difficulty with one of the students and asked if she could skip the shopping component of the lesson and take this student straight to McDonald's. Morales agreed. Before setting out to shop, Morales assigned to Mr. Cestero the primary custodial responsibility for two students, one of whom, A.P., is unable to walk or talk and must be transported in a wheelchair. Mr. Cestero was an experienced employee with a record of good performance, and Morales's delegation to Mr. Cestero of responsibility for the safety of these students while in the store was authorized and proper. Morales herself took charge of the three remaining students, including one who was in a wheelchair. After looking at toys, Morales led the group to the candy aisle. As they moved through the store, Morales and her three students stayed ahead of Mr. Cestero and his pair of students. Morales and Mr. Cestero talked with one another, but she could not see Mr. Cestero or the two students under his supervision, all of whom were following behind Morales. Morales selected some candy to purchase. The group proceeded to the checkout aisles with Morales still in the lead. Mr. Cestero told Morales that he and his students would go ahead of her to McDonald's, where they would all meet again after Morales (with three students in tow) had paid for the candy and caught up with them. Morales thought this was fine and said so. She could not see Mr. Cestero and, having no reason to believe that anything might be amiss, did not turn around to look at him. In fact something was wrong. Unbeknown to Morales, Mr. Cestero inexplicably had left A.P. behind in the candy aisle, unattended. When he departed for McDonald's, therefore, Mr. Cestero was escorting only one student, not the two who had been placed in his care. It was shortly after 10:00 a.m. Morales completed her purchase without incident. Unaware of any problem, she made her way to McDonald's, at the front of the store. As she approached the restaurant, Morales saw Ms. Glover and Mr. Cestero sitting at adjacent tables with the students, behaving as though everything were under control and showing no signs of concern or distress. She brought her three students over to the paraprofessionals, and left them in their care so that she could order snacks for the group. To Morales, the situation appeared to be normal. Responsible adults had charge of the children. Neither paraprofessional was upset or flustered; to the contrary, their demeanors were calm, even relaxed. No patently dangerous, suspicious, or unusual condition was visible to Morales. She did not notice that A.P. was missing. As Morales waited in line at the McDonald's counter, she glanced over at the tables where her students and the paraprofessionals were sitting and counted heads. Morales thought she saw six students. She ordered hash browns. With hash browns in hand, Morales returned to the group. As soon as she got there, she began distributing the snacks. Before she could sit down to eat, however, a police officer arrived with A.P., who had been sitting alone in the candy aisle for nearly 20 minutes until——after worried Walmart employees had called for help——being rescued at around 10:20 a.m. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Morales is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A- 5.056(2).1/ The greater weight of the evidence fails to establish that Morales is guilty of violating School Board policies: (a) on standards of ethical conduct; (b) establishing a Code of Ethics; and (c) governing student supervision and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Morales of all charges brought against her in this proceeding, reinstating her as a teacher, and awarding her back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 26th day of May, 2015, 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 26th day of May, 2015.
The Issue Whether Petitioner should be granted an educator's certification although he allegedly engaged in inappropriate conduct on May 8, 2002, in violation of Section 1012.795(1)(c), Florida Statutes.
Findings Of Fact On or about May 8, 2002, Deputy Kevin Mason of the Hillsborough County Sheriff's Office stopped a person named David Cheesman for consuming alcohol within 500 feet of a bar, which is prohibited by local ordinance. Deputy Mason "patted down" Cheesman and discovered he was in possession of pills he recognized as clonazepam. Cheesman informed the deputy he had received the pills from Petitioner who was standing nearby. Petitioner had, in fact, given the clonazepam pills to Cheesman. Petitioner had a prescription for the pills. His psychiatrist had just lowered the dosage from 2 mg to 0.5 mg. However, Petitioner had five of the 2 mg pills left. It was those five pills he gave to Cheesman. Petitioner knew the pills were antiseizure and antistress medication, since they had been prescribed by his psychiatrist. Petitioner knew the pills could not be purchased without a prescription. Petitioner was arrested for delivery of a controlled substance, a felony, and also for drinking within 500 feet of a bar, a misdemeanor. The delivery of a controlled substance charge was eventually dropped in criminal court, and Petitioner pled nolo contendere to the misdemeanor. At the time of his arrest, Petitioner was employed as a teacher in the Hillsborough School District working under a temporary certificate. Petitioner's arrest was reported in a local newspaper. As a result of his arrest, Petitioner was suspended without pay, pending further investigation. Petitioner's contract of employment with the Hillsborough School District was not renewed as of July 31, 2002. Teachers in Hillsborough are expected by the public to hold themselves as upstanding citizens, and the delivery of controlled substances and drinking within 500 feet of a bar is not acceptable conduct. Petitioner's inappropriate conduct on May 8, 2002, was an act involving moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Petitioner did violate the provisions of Section 1012.795(1)(c). It is further RECOMMENDED that a final order be issued denying the issuance of a teaching certificate to Petitioner; that Petitioner be prohibited from reapplying for a period of one year; and that should Petitioner reapply, the certificate be issued subject to such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Arthur Therrien, Jr. 2114 Village Avenue South Tampa, Florida 33612 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Wright holds teaching certificate number 109682, covering the areas of elementary education and junior college. This certificate was issued on October 4, 1978, and is valid until 1989. Wright is employed by the Duval County School Board and is currently assigned to the Media center in Jacksonville, Florida. Wright has been a teacher with the Duval County School Board since 1962 and was a teacher at Mamie Agnes Jones Elementary School for 17 years, until this incident resulted in reassignment to the Media center. Wright attempted to motivate students by offering them money and other rewards for achieving good grades. He visited in other classrooms and took interest in students that were not in his class. One student he singled out, who was not in his class, was Lillian Simone Allen. He says he singled her out because "he saw potential in her." Wright talked to Ms. Allen's teacher on several occasions about her grades and he talked to Ms. Allen directly. As an incentive, he entered into a "bet" with Ms. Allen whereby she would receive money from him if she made the A/B Honor Role. On February 2, 1987, Ms. Allen walked to school as usual and went to the cafeteria with her friends. Shortly thereafter, Wright entered the cafeteria and said hello to the group. Ms. Allen did not say hello and Wright asked her why she did not respond. Ms. Allen finally said hello. Wright then asked her some questions about her grades and whether she needed any help. Ms. Allen went outside to wait for the buses to arrive with other friends on board. When they arrived, the group went to the playground. After playing for a few minutes, Ms. Allen and some friends headed for the library. On the way, Wright saw her and called her over. He asked her to come to his room to discuss her grades. Wright unlocked his classroom and both entered. He closed the door behind them. Ms. Allen remained standing by the door until Wright called her over to some cabinets along one wall. The area of the room where the cabinets were located was out of the view of the door and the only window in the room. Ms. Allen ended up sitting on the low cabinet. Wright was sitting next to her. A male student in Wright's class entered the room to place his books on his desk. Wright moved away from Ms. Allen when this student was in the room. After the student left, Wright began putting papers in the high cabinet next to where Ms. Allen was sitting. Up until that moment, Wright had been asking Ms. Allen about her grades and whether she needed help with her studies. After the student left, Wright moved over next to Ms. Allen and began rubbing her shoulder. Then he ran his hand down and rubbed her hip and thigh. Wright then stepped in front of Ms. Allen and asked her bra size. Using both hands, Wright touched and rubbed Ms. Allen's breasts. Wright heard the door handle turn and stepped away from Ms. Allen. A female student who was a friend of Ms. Allen's entered the room to drop off her books. As soon as this student, Lakia, left the room, Ms. Allen jumped up and left the room. Ms. Allen was shocked and frightened by this incident. At the time she was twelve years old. She was mature enough that she was wearing a bra, but no teacher had ever touched her in this manner. She is now scared of males and male teachers. When she left the room, Ms. Allen went out to the playground and talked to her friend, Lakia. She then went and told her teacher, Ms. Miles, who in turn took Ms. Allen to the principal's office. An investigation was conducted initially by the principal, Mr. Hurst. Wright denied touching Ms. Allen. A further investigation was conducted by Police Officer Norman of the School Board's Security Office. Wright told Norman that he could have accidently brushed against the left side of Ms. Allen's body. Now Wright denies making this statement. On or about March 4, 1987, Wright was arrested and charged with three counts of lewd and lascivious assault upon a minor child in violation of Section 800.04, Florida Statutes. Two additional victims were mentioned in the information, but no testimony regarding those children was presented in this proceeding. The information filed on March 13, 1987, charged Wright with lewd, lascivious or indecent acts upon minor children. Wright entered into a Deferred Prosecution Agreement whereby he was placed on 24 months probation with the special conditions that he perform 80 hours of community service, that he have no contact directly or indirectly with the victims, that he not be employed as a teacher at Mamie Agnes Jones Elementary, and that he attend Arlington Psychological Center for evaluation and successful counseling. In exchange for the Deferred Prosecution Agreement, the State Attorney's Office nol prossed the Information. According the Mr. Hurst, the principal, there was publicity about these events at the time and teachers, parents and students were aware of the arrest. Since that time the matter has died down and people no longer ask about it. According to Raymond Bailey, Director of Certified Personnel at the Duval County School Board, if the allegations are shown to be true, the acts are ones of gross immorality or moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; and the acts are personal conduct which seriously reduces Wright's effectiveness as an employee of the School Board; the acts violate Rules 6B-1.006(3)(e)(f), and (h), in that they exposed a student to unnecessary harassment or disparagement, they intentionally violated or denied a student her legal rights, and they exploited his professional relationship with a student for personal gain or advantage. In making these findings regarding the actual events of this incident, it recognized that Wright denies that he touched Ms. Allen in an inappropriate manner. It is also recognized that Ms. Allen's testimony contains some inconsistencies, such as the date of the event. Viewing the testimony as a whole, however, it is found that Ms. Allens testimony the more credible and that Wright's testimony is self-serving and inconsistent with statements made to the principal and the Police Officer during the investigations.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that The Department of Education, Education Practices Commission, enter a Final Order finding Ira B. Wright guilty of the violations charged and permanently revoking his teaching certificate number 109682. DONE and ENTERED this 26th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of October, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-2474 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education, Education Practices Commission Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5(4&5) ; 6(6); 7- 9(7); 10&11(8) ; 12(9&10) ; 13(11); 14(10); 15-17(11); 18- 20(12-14); 22(15); 23&24(16) ; 25-28(17-20); and 29-33(20). Proposed findings of fact 21 and 34 are unnecessary or Irrelevant. Specific Rulings on proposed Findings of Fact Submitted by Respondent, Ira B. Wright Each of the following proposed findings of fact are adopted In substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3(2); 14(4); 20(21); and 26(3). Proposed findings of fact 4-9, 18, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10-12, 27 and 28 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 13, 15-17, 19, and 21-25 are Irrelevant. COPIES FURNISHED: Lane Burnett 331 East Union Street Suite 2 Jacksonville, Florida 32202 David A Hertz 1601 Atlantic Boulevard Jacksonville, Florida 32207 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 =================================================================
