The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
Findings Of Fact Admitted Facts 1/ Respondent holds Florida teaching certificate 534707. The certificate authorizes Respondent to teach social studies. It is valid through June 30, 1994. Respondent is employed as a Social Studies Teacher at Osceola High School in Osceola County, Florida. He has been so employed at all times material to this proceeding, except for a suspension of five days without pay. The five-day suspension and a letter of reprimand were imposed by the Osceola County School District pursuant to a Disciplinary Agreement between Respondent and the District. The conduct that led to the Disciplinary Agreement is the same conduct that is at issue in this proceeding. In November, 1992, Respondent's classes studied the assassination of President John F. Kennedy. Tim Dodson ("Dodson") was a male student in one of those classes. Dodson told Respondent that Dodson's father owned a replica of the rifle used to assassinate President Kennedy. Respondent sent a note to Dodson's father requesting that Dodson bring the rifle to Respondent's class. Dodson brought the rifle to Respondent's class during the week of November 16, 1992. On November 18, 1992, Respondent took his class outside to the football field. Dodson climbed to the top of an observation tower and fired two rounds of live ammunition at a target located on the ground. Purpose The purpose of firing the rifle from the observation tower was to simulate the angle of fire from Lee Harvey Oswald to President Kennedy in 1963. The firing time was not part of the simulation. Out of concern for safety, Respondent did not permit Dodson to fire the rifle in the same time that Oswald fired his rifle. The three story observation tower on the football field was lower than the fifth story of the book depository in Dallas, Texas. However, the distance from the observation tower to the target was also shorter than the distance from the book depository to President Kennedy. Respondent determined that the angle created by the lower tower and shorter distance in the simulation approximated the actual angle of fire in the assassination of President Kennedy. The target was a metal military helmet resting on a two- by-four board. The target was set at approximately the same height that President Kennedy was positioned in 1963. Prior to November 18, 1992, Respondent's students studied the assassination of President Kennedy and watched the "Zapruder" film of the assassination. On November 18, 1992, students witnessed the simulation and inspected the target after the simulation. They then wrote papers on the assassination and the "lone gunman" theory. Procedure The simulation was originally scheduled for November 16, 1992. Respondent cancelled that simulation because of trouble with the bolt action in the rifle and because of rain. On November 18, 1992, Respondent prescribed specific procedures to be followed during the simulation. Dodson carried the rifle. A second student carried the bolt action. A third student carried the ammunition. A fourth student was designated as a "backup shooter" in the event Dodson missed the target. Both Dodson and the backup shooter were excellent shots and had significant experience with firearms. Respondent, the three students carrying the rifle parts and ammunition, and the backup shooter climbed to the top of the tower. The tower platform was approximately 48 square feet. Respondent instructed Dodson to shoot only on Respondent's command. Respondent also instructed Dodson not to shoot if Dodson saw anyone in the vicinity. Respondent descended the observation tower and remained on the ground with the rest of the students in his class. Respondent and the students on the ground stood behind the shooter and the observation tower. The three students who remained on the platform with Dodson stood behind Dodson. Dodson assembled the rifle and loaded it. On Respondent's command from the ground, Dodson fired two shots at the target. One round hit the target; the other hit the ground. Dodson took the bolt action from the rifle and handed it to the designated student. Dodson and the other three students descended the tower. They inspected the target with the students on the ground and returned to class with the other students. Neither Respondent, any other school official, nor any other competent adult was on the tower platform with Dodson and the other three students. Dodson and the other three students on the platform were not supervised immediately before, during, and after Dodson fired the rifle. Vicinity The observation tower was located approximately 400 feet west of the nearest campus building; in a vacant football field-track-and-parking complex (the "complex"). The complex is approximately 500 feet wide, east to west, and approximately 1,200 feet long, north to south. The observation tower was situated approximately 300 feet west of the east boundary, midway between the north and south boundaries, and 200 feet east of the west boundary. The west boundary of the complex is formed by a drainage ditch that runs the entire 1,200 feet between the complex's north and south boundaries. At its closest point, the drainage ditch was approximately 200 feet west of the observation tower. The target was located approximately 250 feet southwest of the observation tower. It was approximately 10 feet in front of the drainage ditch. The drainage ditch is approximately 25 feet deep. On the west side of the drainage ditch, and adjacent to it, is a line of trees, shrubs, and a six foot chain link fence (the "ditch and tree line"). West of the ditch and tree line are athletic fields used only in the Spring. West of the athletic fields are vacant lands owned by the airport. On November 18, 1992, students and maintenance workers had access to the complex where the observation tower was located. Respondent investigated the complex surrounding the observation tower up to the ditch and tree line. Respondent correctly determined that no one was present in the area Respondent inspected. Students and maintenance workers also had access to the athletic fields west of the ditch and tree line. Although Respondent did not inspect that area, no students were in fact present in the uninspected area. Unknown to Respondent and his students, three maintenance workers were present in the uninspected area. The workers parked their trucks on the softball field between first and second base. They were parked approximately 500 feet west of the ditch and tree line. The maintenance workers were not in the line of fire. They parked their trucks approximately 700 feet due west of the observation tower and approximately 600 feet northwest of the target. The target was approximately 250 southwest of the observation tower and east of the ditch and tree line. Approximately two minutes after parking their trucks on the softball field, the three maintenance workers heard a shot. Two of the maintenance workers left their vehicle. They walked over to the ditch and tree line to investigate the shot. One of the workers walked to a clear spot in the tree line. He tried to look over the top of "some pretty good-sized brush" growing in the clear spot. He saw "three or four kids' heads" on top of the observation tower. The workers found nothing else, returned to their trucks, and completed their duties. Embarrassment And Disparagement Petitioner did not intentionally expose a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e). 2/ Dodson was proud of his role in the simulation. Students uniformly considered the simulation to be a positive learning experience. Although the simulation received significant notoriety in the community through local media coverage and community attention, no student felt embarrassed or disparaged by either the notoriety or the simulation. The notoriety that did occur and any embarrassment or disparagement that may have occurred, if any, was not intended by Respondent. Learning Experience And Mental Health Or Safety Respondent did not fail to make a reasonable effort to protect students from conditions harmful to learning or to students' mental health or safety within the meaning of Florida Administrative Code 6B-1.006(3)(a). 3/ The simulation was a positive learning experience. Students described the learning experience as "great" and "interesting." Almost two years after the simulation, students involved in the simulation were excited about their experience and remembered what they had learned about a significant episode in American history. Physical Health Or Safety Respondent failed to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Florida Administrative Code 6B-1.006(3)(a). The effort made by Respondent was not reasonable, and it failed in fact to protect students from conditions harmful to their physical safety and to their physical health. Unreasonable Effort The effort made by Respondent was unreasonable in three respects. First, it was not reasonable for Respondent to conduct the simulation in the absence of prior notice to, and written authority from, the appropriate school and law enforcement officials. Second, it was not reasonable for Respondent to sanction the possession of a rifle and the firing of live ammunition on campus. Finally, it was not reasonable for Respondent to conduct the simulation without appropriate supervision on the tower platform. 7.01(a) Prior Notice And Consent Prior notice to school and law enforcement officials would have given those officials an opportunity to determine if the simulation was appropriate under any circumstances. If those officials determined that the simulation was appropriate, they would then have had the opportunity to determine the level of supervision required to conduct the simulation in a manner that protected students from conditions harmful to their physical health and safety. By unilaterally determining that the simulation and attendant conditions were appropriate, Respondent denied school and law enforcement officials the opportunity make their own decisions and exposed those officials to potential liability for any actual harm to the students that may have occurred. It was unreasonable to expose those officials to such liability without their prior knowledge and consent. 7.01(b) Sanctioned Use Of Firearms The sanctioned use of a rifle and live ammunition on campus was unreasonable. It creates a risk that students will draw an incorrect inference from the simulation. Respondent testified in the formal hearing that he was under the mistaken impression that it was okay to permit firearms on campus. He based his impression on the fact that the principal had previously condoned the presence of a firearm in Respondent's class, that Respondent had seen ROTC members and police liaison officers present on campus with guns, and that Respondent had also previously witnessed civil war reenactments on campus and mistakenly assumed that the participants used live ammunition. Respondent drew an incorrect inference from the sanctioned presence of firearms on campus. If a person of Respondent's education, experience, and intelligence can draw an incorrect inference from the sanctioned presence of firearms on campus, there is at least an equal risk that Respondent's youthful and inexperienced students will draw a similar inference from the use of a firearm that is sanctioned by Respondent. Respondent's failure to consider this factor rendered his effort unreasonable. 4/ 7.01(c) Inadequate Supervision Respondent's effort to protect his students from harmful conditions was also unreasonable because Respondent failed to provide adequate supervision for students on the tower platform. The failure to have, at a minimum, at least one school official, law enforcement official, or other competent adult on the tower platform with Dodson and his companions was not a reasonable effort to protect students on the platform and students on the ground from harmful conditions. Harmful Conditions The effort actually made by Respondent failed, in fact, to protect students from conditions harmful to their physical safety. The effort created unsafe conditions including the possession and discharge of a rifle, loaded with live ammunition, by an unsupervised high school student, positioned on top of a three story tower, accompanied by three other students who were also unsupervised, while Respondent and the other students observed from the ground three stories below. Those conditions were unsafe and, therefore, failed to protect students from conditions harmful to their physical safety. The conditions of the simulation threatened harm to the students physical health by creating a risk of actual harm. The conditions were, therefore, harmful to the students' physical health for purposes of Florida Administrative Code Rule 6B-1.006(3)(a). The harm that students were threatened with included serious injury or death. A misfire could have resulted in serious injury or death to any of the students on the ground or on the platform. Similarly, a fall from a height of three stories could have resulted in serious injury or death to any of the four students on the platform. Mitigating Factors The physical health of any one student was not in fact harmed as a result of the simulation. The angle of the rifle to the target, the depth of the ditch, and the density of the tree line made it unlikely that a bullet fired at the target would hit anything except the target, the ground, or the ditch and tree line. Dodson and the "backup shooter" had substantial experience with firearms and were expert marksmen. Those factors diminished the possibility of a misfire and the possibility that bullets fired at the target would hit anything other than the target or the ditch. The bullets, in fact, struck only the target or the ditch. No students other than those involved in the simulation were present in the complex. No students were present in the uninspected area west of the ditch and tree line. No person who was not a student was injured as a result of the simulation. The maintenance workers were not in the line of fire and were not in fact harmed. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to their physical health or safety before and after the simulation. Respondent gave Dodson specific instructions before Dodson brought the rifle to school. Pursuant to Respondent's instructions, Dodson removed the bolt action from the rifle, put the rifle in his car, locked the rifle in his car, and went to class. Respondent and Dodson immediately retrieved the rifle from the car and carried the separate parts of the rifle and the ammunition back to the classroom. Respondent followed adequate safety precautions before and after the simulation. The unloaded rifle, the bolt action that had been removed from the rifle, and the ammunition were kept locked in Respondent's closet in his classroom. The only times that the rifle was not locked in the closet was during the simulation and when Respondent permitted his students to view the rifle when it was first brought to school. The only time that the rifle was harmful was on the platform immediately before, during, and after it was fired. Earlier in the school year, school officials condoned the presence of a World War II rifle brought into Respondent's class without notice to school officials and without their prior consent. The school principal entered Respondent's classroom on other business and saw Respondent and other students inspecting the rifle. The principal did not object to the presence of the rifle and joked about students wanting to get rid of the principal. The school principal encouraged Respondent to use simulations. At a meeting of social studies teachers conducted in the beginning of the school year, the school principal encouraged those teachers to take teaching risks and to use new and unconventional methods for reaching students. Simulations were included in the methods suggested by the principal. 5/ Respondent is highly regarded by students. They give him high marks for bringing his subject matter to life. He frequently uses films, demonstrations, and simulations to capture students' interest through visual history. Students in Respondent's classes learn, enjoy learning, and retain what they learn. Other students try to get into Respondent's classes. Respondent is highly regarded by his employer. The Assistant Principal of Osceola High School testified: He is a very good teacher, very effective. Kids love him. He works very hard. He loves teaching. He is passionate with his subject. When I . . . observe him, I get so involved that I don't want to leave. Respondent's employment assessment for the last two years has been "excellent." The abilities and skills that Respondent brings to the classroom are significant resources for students and provide them with substantial benefits. School officials arranged for Respondent to complete his five-day suspension so that he did not miss any time in the classroom. Respondent is highly respected by the school faculty. Respondent's role in the simulation conducted on November 18, 1992, did not diminish the respect Respondent has earned from his peers. The faculty at Osceola High School voted Respondent teacher of the year for the 1993-94 school year. Respondent was runner-up for teacher of the year in the 1992-93 school year, the year that Respondent conducted the simulation. Respondent is a well educated public school teacher. Respondent received his undergraduate degree from Central Michigan University, a teachers college. He received a master's degree in education, curriculum, and instruction from Michigan State University. Respondent received a specialist degree in leadership (i.e., administration) from the University of Central Florida. A specialist degree is awarded to persons who hold a master's degree and successfully complete all of the requirements for a doctorate except the dissertation. Respondent is presently a doctoral student in leadership at the University of Central Florida. Respondent has significant teaching experience. He has been teaching public school children for over 16 years, including 10 years at Osceola High School, a time at Winter Park Junior High School in Orange County, Florida, and six years in DeWitt, Michigan, a suburb of Lansing, Michigan. Respondent has been an adjunct teacher at Valencia Community College and the University of Central Florida. While Respondent taught public school children, he was also involved in assisting students in their extra curricular activities. Respondent was a head basketball coach for junior varsity and freshman basketball, a high school football coach, and a varsity and junior varsity baseball coach. Respondent coached youth leagues for girls softball and boys baseball. He coached in summer basketball camps put on by Michigan State University and worked for the Milwaukee Bucks in coaching basketball clinics for them. Respondent also teaches religious education and is the head of a youth group. Respondent has no prior disciplinary history against his teaching certificate. The Disciplinary Agreement entered into between Osceola High School and Respondent, as a result of the simulation conducted on November 18, 1992, is the only disciplinary action taken against Respondent during his considerable teaching career. One of the elements of The Disciplinary Agreement involved a period of probation. Respondent was returned to a Needs Improvement status and evaluated by school officials at the end of his probationary period. Respondent successfully completed the probation, was evaluated "excellent," and returned to his regular status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission (the "Commission") enter a Final Order finding Respondent: not guilty of intentionally exposing a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e); not guilty of failing to make a reasonable effort to protect students from conditions harmful to learning or to their mental health or safety within the meaning of Rule 6B-1.006(3)(a); and guilty of failing to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Rule 6B- 1.006(3)(a) and Section 231.28(1)(i), Florida Statutes. It is further recommended that the Final Order impose the following penalty: a letter of reprimand filed in Respondent's teaching certificate file; the completion, at Respondent's expense and within one year of the date of the Final Order, of an appropriate course in classroom safety which shall not exceed one, three hour college level class; and suspension of Respondent's teaching certificate for not more than 30 days to be carried out in a manner that will not preclude students at Osceola High School from receiving regular classroom instruction from Respondent, will not preclude the automatic reinstatement of Respondent's teaching certificate at the conclusion of the period of suspension, and will not have an adverse effect for Respondent's current employment status at Osceola High School and any attendant benefits such as medical insurance and retirement benefits; or either at the election of Respondent or in the event it is not feasible to implement suspension subject to the limitations stated herein, an administrative fine not greater than $1,000 to be paid in lieu of suspension of the teaching certificate. The actual term of suspension or the actual amount of the fine, if elected, shall be determined by the Commission subject to the limits established in this Recommended Order. Respondent may elect to pay the fine at any time prior to the first day of the actual suspension determined by the Commission. Subject to the limits established herein, any fine elected by Respondent shall be imposed in accordance with the provisions of Section 231.262(6)(c), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994.
The Issue The issue is whether Respondent should be dismissed from his employment as a school teacher for just cause pursuant to Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Background Petitioner is the duly appointed Superintendent for HCSB. He is responsible for the administration and management of the Hernando County School District. HCSB is the governing body of the Hernando County School District. It is charged with the responsibility to operate, control, and supervise all free public schools in Hernando County, Florida. At all times material here, Respondent was, and continues to be, an employee of the HCSB as a member of the instructional staff pursuant to a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with minor students. Apart from the allegations raised in this case, Respondent has been a satisfactory employee. No employee, agent, or representative of the HCSB was aware of any allegations of inappropriate sexual conduct between Respondent and any student until law enforcement officials notified school officials about an investigation a few days before Respondent's arrest. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher. He eventually became the technology resource coordinator at Powell Middle School. Respondent served as director of an after school program (ASP) at Powell Middle School beginning in January 1995. HCSB and the local YMCA sponsored and funded the ASP until sometime in the spring of 1996. Respondent was in large part responsible for the successful creation, organization, and operation of the ASP. The ASP began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after school activities, like swimming lessons, took place on the premises of the YMCA. The ASP participants rode a school bus from the school to activities in remote locations. Respondent directed the ASP initially from his classroom in the science building of Powell Middle School and subsequently from a room used as a computer lab, which was adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the ASP were stored there. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to the cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp, in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. C.B. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. At that time, C.B. was not one of Respondent's regular students. He was a participant in the ASP. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the ASP. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. However, with help from his counselors, and encouragement from Respondent, C.B. stayed at camp for eight weeks. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the ASP. Respondent regularly drove C.B. home following the close of the ASP. Respondent worked one-on-one with C.B. to improve his grades. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B.'s grades improved markedly. Respondent encouraged C.B. to set high school graduation as a goal. C.B. testified that, during the after school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. They traveled in Respondent's pick-up truck and shared the expenses of the trip. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Respondent and C.B. paid their entrance fee and entered the theme park as soon as it opened for business. With so many people around, there was no expectation of privacy in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Families. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. C.B. attended camp at a reduced rate again in the summer of 1996. He went to Vermont early so that he could earn money working at camp before it opened. During the summer, Respondent bought C.B. a portable C.D. player, C.D.'s, and some articles of clothing with the understanding that C.B. would repay Respondent later. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996 for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead High School. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons, as he had for those of other young people. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent that weekend because he was on restrictions at home. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. After a confrontation with his parents, C.B. ran away from home. On September 21, 1996, Respondent went to C.B.'s home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor, and their son and daughter, were close friends of Respondent. The son, Sean O'Connor, was away at college. The daughter, Jennifer, still lived at home. C.B.'s parents agreed to let C.B. live with the O'Connors on a trial basis, provided that C.B. remain on restrictions within the O'Connor home for a period of time. The O'Connors did not live within the Springstead High School district. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Respondent purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his step-brother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996 was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connor residence, then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connor home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On Thursday, October 24, 1996, C.B.'s father decided that he wanted C.B. to move back home. When the father arrived at the O'Connor's home, C.B. attempted to have a heart-to-heart talk with his father. When the father insisted that C.B. return home, C.B. ran out into the yard of the O'Connor home. The father caught up with C.B. and, during the ensuing struggle, repeatedly punched C.B. in the face. The O'Connors called the police. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with the O'Connors' daughter. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with her. Because he would not go home with his stepmother, C.B. was taken to a youth shelter. He ran away from the shelter that night. C.B. continued to attend school while on run away status. On October 29, 1996 and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Families each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father's made his first court appearance, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.3 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct, involving masturbation of Respondent's penis, in Respondent's science classroom or the computer room at Powell Middle School during after school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. A.P. Respondent met A.P., a sixth grade student at Powell Middle School in 1995 as a participant in the ASP. A.P. was a very out-going person, who demanded attention. At times, Respondent, as director of ASP, had to discipline A.P. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during ASP. Respondent frequently gave A.P. a ride home after ASP. Respondent offered A.P. a scholarship to attend Camp Sangamon in the summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the ASP. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley, interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Hernando County School Board enter a Final Order finding Respondent not quilty of improper sexual conduct with C.B. and A.P., and reinstating Respondent to his teaching position, with back pay, less interim earnings, benefits, and no break in seniority of years of continuous service. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998.
The Issue At issue herein is whether or not the teaching certificate of Raymond A. Brooks, Respondent, should be revoked based on conduct set forth hereinafter in detail for alleged violations of Sections 231.28 and 231.09, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Rules of the State Board of Education, as alleged in the Petition filed herein.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Raymond A. Brooks, Respondent, holds Florida Teaching Certificate No. 150640, Graduate, Rank III, valid through June 30, 1979, covering the area of auto mechanics. During times material, Respondent has been employed in the public schools of Brevard County at Cocoa Beach High School as a shop teacher. He is currently on temporary duty elsewhere outside a classroom setting. This case was initiated based on a report received by the Florida Professional Practices Council on November 15, 1978, by officials of the Brevard County School Board alleging that Respondent may have committed acts providing grounds for revocation of his Florida Teaching Certificate. Pursuant to Florida Administrative Code Rule 6A-4.37, an investigation of the matter was undertaken and a report submitted to the Executive Committee of the Professional Practices Council (Petitioner). On January 9, 1979, the Executive Committee found that there existed probable cause to believe that Respondent was guilty of acts which provide grounds for the revocation of his Florida Teaching Certificate, which finding was forwarded to the Commissioner of Education who also found such probable cause and directed the filing of the instant Petition filed herein on January 25, 1979. Said Petition alleged that Respondent had engaged in conduct that is "inconsistent with good morals and the public conscience, conduct which is not a proper example for students and conduct which is sufficiently notorious to bring Raymond A. Brooks and the education profession into public disgrace and disrespect." It is further alleged that his alleged conduct reduced his effectiveness as a School Board employee. The material allegations of the Petition are that: Respondent, while acting in his capacity as a teacher at Cocoa Beach High School, entered into discussions with students in his classroom regarding the growth and cultivation of marijuana, which led them to believe that he condoned the use of marijuana. Respondent allowed students to clean stems and seeds from marijuana in his classroom. Respondent allowed students to roll marijuana cigarettes in his classroom. Respondent allowed students to bring marijuana to his classroom. Respondent bought a camera from a student who told him the camera was stolen. Respondent misrepresented to students, provisions of the school's student handbook regarding possession of marijuana on school grounds. Respondent served as a "lookout" for students while they smoked marijuana. On March 27, 1979, Respondent answered the allegations admitting jurisdiction, but denying the substantive allegations contained in the Petition. The Petitioner presented the testimony of eight (8) male high school students: Perry Morton, Paulo Carlini, Mark Murphy, Thomas Miller, John Gore, Hugh Baker, John Mason and Kirk Vanomer (by deposition). In addition, Petitioner offered the testimony of H. D. Smith, Principal of Cocoa Beach High School, who testified that, in his opinion, Respondent's effectiveness as an employee of the Brevard County School System had been seriously reduced as a result of the alleged misconduct on Respondent's part. All of the student witnesses who testified were enrolled in Respondent's fourth period power mechanics class and were present when Respondent discussed the growing of marijuana with them in their classroom during their fourth period class. It suffices to say that according to their testimony, Respondent explained to them how to cut marijuana stalks in order to increase the potency of marijuana in the plant leaves. Respondent also made known to his fourth period students his personal belief that marijuana should be legalized. Testimony also reveals that at least on one occasion, Respondent told his students that they could roll a joint in his class but that they could not light it up. Student Carlini also testified that other teachers at the high school talked to them about drugs. (TR. 34-35) The testimony is clear that all of the student witnesses recalled Respondent advising them that the possession and use of marijuana was against school regulations and against the law. In this regard, Respondent testified that when the subject of marijuana came up during a free period in class, he related what information he knew based on his personal observations and a pamphlet provided him by the Brevard Sheriff's Department to advise students and address questions posed to him by such students. And, as stated, Respondent advised students that it was his personal opinion that the use of marijuana should be legalized based on the costs of enforcement and increased revenues derived from a "use" tax on marijuana. Respondent further testified that he neither advocated nor condoned the use of marijuana. In support of its allegations that Respondent permitted and/or allowed students to clean and roll marijuana in his classroom, Petitioner presented the testimony of student Paulo Carlini. Carlini acknowledged the fact that during each of two prior days before the date in question, he and other students had been rolling pencil shavings in the form of marijuana cigarettes. Carlini further acknowledged that Respondent told them that the possession of marijuana was against school regulations. A second witness presented by Petitioner was Perry Morton. Morton testified that he gave a bag of marijuana to Joe Schraffenberger during class on the day of the incident in questions. Like Carlini, Morton acknowledged that during the two days immediately preceding the incident the students had been rolling pencil shavings in the form of marijuana cigarettes. The purpose of this was to trick the teachers and administration into believing that they had marijuana in their possession and then embarrassing them when it proved to be pencil shavings. Rollin Burch, one of the student witnesses who testified indicated that he also saw pencil shavings being rolled that day on which it is alleged that the Respondent permitted marijuana cigarettes to be rolled in his class. The substance claimed to be marijuana was not presented during the hearing. Additionally, Respondent denied having any knowledge of marijuana in his classroom, nor did he give permission for his students to roll marijuana in his classroom. Respondent testified that on the two days prior to the incident involved herein, several students had been rolling pencil shavings contained in a transparent bag in the form of marijuana cigarettes. Respondent, on each of the two days in question, checked the bag and the cigarettes to make sure that what they were rolling were in fact pencil shavings. On each instance, pencil shavings were being rolled by the students. On the day of the incident, Respondent was busy working at his desk on student failure reports that were due. Carlini showed him a transparent bag and asked permission to roll the substance inside. Respondent glanced up, viewed what he thought to be pencil shavings, nodded his consent and resumed work on his reports. Later, seeing a rolled cigarette, Respondent smelled it, concluded that it smelled like pencil shavings, and returned it to the student. Finally, in response to the allegations that Respondent misrepresented school regulations by permitting students to roll marijuana in his classroom, Respondent acknowledged that he made the statement that, "You can roll them, but you can't light them up." Respondent further acknowledged that he represented to the students that nothing in the school regulations prohibited the rolling of pencil shavings into the form of marijuana cigarettes, although all smoking is prohibited. During the period in which the pencil shavings were being rolled, a student asked whether he could smoke one of the pencil shaving cigarettes, whereupon Respondent replied: "You can roll them, but don't light them up." All of the students testified during cross-examination that the above statement was made during the time when pencil shavings were being rolled. Respondent confronted several students in a prohibited area of the school grounds and advised them that they should carefully return to the school grounds inasmuch as Dean Wright was in the area. By such statement, the students apparently assumed that Respondent knew that they were there to "smoke some pot." Marijuana was never mentioned and, although Respondent's comment was made in the form of a warning, the students assumed that Respondent knew some of them smoked marijuana and that that was their purpose for being there. The students questioned on the subject acknowledged that at the time of the incident, they were doing nothing illegal and that Respondent had no way of knowing their purpose for being in that area. The Petitioner offered no evidence in support of the allegation that the Respondent bought a camera which he knew was stolen. Finally, Petitioner, through the testimony of Principal H. D. Smith, urges a finding that Respondent's conduct is inconsistent with good morals, public conscience or sufficiently notorious as to bring Respondent and the educational profession into public disgrace and disrespect or that it has impaired his effectiveness a teacher. Principal Smith acknowledged the fact that Respondent was employed to teach power mechanics and vocational shop during his tenure as principal for the past three years. Principal Smith, prompted by reports that he received from two parents and a student, Kirk Vanomer, contacted school security who investigated reports that Respondent was permitting students to clean seeds and roll marijuana in his power mechanics class. (TR. 119-120) Based on the findings of the investigation conducted by school security, Principal Smith voiced his opinion that Respondent violated the Code of Ethics in that he permitted students to engage in an activity that was "both criminal and in violation of school board regulations." (TR. 126) Principal Smith pointed to page 25 of the School Board Regulations, Section 44.7, which provides in pertinent part that, "It is against school board regulations for students to have possession of or be under the influence of drugs or alcoholic beverages." He further testified that students are given copies of the student handbook during the pre-planning period (the first week of the school year) and that the teachers are responsible for advising students of their rights and responsibilities as related to the student handbook. (TR. 128) Principal Smith indicated that several parents called in inquire about what disciplinary measures would be taken against Respondent and that several students had expressed anxiety to him about being assigned to Respondent's inasmuch as they had testified against him. (TR. 130-131) George Arthur Powell, Jr., a woodworking instructor at Brevard County Public School System for approximately fifteen years, testified that the Respondent is regarded as a strict disciplinarian among fellow teachers in the school system. Mr. Powell testified that he encountered disciplinary problems with the administration supporting him with respect to his attempts to discipline students at Cocoa Beach High School. According to Mr. Powell, during the October of 1978, he queried Respondent about students using fake marijuana cigarettes rolled from pencil dust or shavings from sawdust. Powell testified that based on his experience, it would serve no purpose to send a student to the administrators for disciplining inasmuch as the administration would probably make fund of the instructor who made such a referral. (TR. 142-144) The Respondent testified on his own behalf indicating that he had been employed by the Brevard County School District for approximately eight years during which time he had taught auto mechanics and mathematics. Prior to the subject incident, Respondent had not been the subject of any disciplinary proceedings. During his initial employment as a teacher at Rockledge High School, Respondent was admonished because of his strict enforcement of the discipline code. During this same period, Respondent's performance and evaluation ratings were excellent. When Respondent was transferred to Cocoa Beach High School during the school year 1978, he was questioned extensively by Principals Hank Smith and Nelson Rutledge regarding his policy on discipline. Testimony reveals that Respondent was selected due to his reputation for being a strict disciplinarian at Rockledge High School during the prior six years. As previously stated, Respondent voiced his opinion that marijuana should be legalized based on the fact that millions of dollars are spent of taxpayers' money each year to "corral, confiscate and apprehend the various pushers and peddlers of drugs and marijuana." Secondly, he indicated that if marijuana was a controlled substance, the taxpayer or the government would realize some revenue from the legalization. Finally, he thought that if marijuana was controlled, like tobacco, alcohol and drugs, it could be regulated and the taxpayers would realize revenues rather than expending revenues to police the borders, towns and cities for pushers and sellers. (TR. 157) Respondent conveyed this opinion to his students during discussions when the subject of marijuana, etc. was initiated or brought up in class. (TR. 158) Respondent denied telling students that he condoned the use of marijuana or advocated its use and advised them that it was illegal, both lawfully and by school rule and regulation, to possess marijuana; that the penalties were whatever the law imposed because in most cases, the student not only received a school suspension but also faced a juvenile court judge because it (possession) was definitely illegal. (TR. 160-161) Respondent admitted advising students, in response to questions posed to him, about the cultivation of drugs. Respondent denied any knowledge that marijuana was, in fact, being rolled in his classroom. Additionally, Respondent denied that he served as a "lookout" for a group of students. (TR. 174) Inasmuch as the instant proceeding is one wherein the Respondent's means of livelihood is threatened, the evidence to substantiate the allegations must be both clear and convincing. See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970), and Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975). The mere fact of Respondent's warning students that they should return to a permissible area of the school grounds provides no basis of concluding that the Respondent served as a "lookout" for students while they smoked marijuana. Testimony reveals that the students were not smoking marijuana in the restricted area nor did the Respondent have any way of knowing the students' purpose for being in the restricted area. No evidence was offered to establish that the Respondent purchased a camera known to be stolen as alleged. Based on the evidence presented, no competent and substantial evidence was offered to establish that the Respondent, during class discussions, advocated or condoned the use of marijuana. Likewise, Petitioner failed to satisfy is burden of proof of establishing that Respondent allowed students to clean and roll marijuana in his classroom or misrepresent to the students, school regulations regarding such matters. Finally, in view of the above conclusions, Petitioner failed to establish that Respondent's conduct is inconsistent with good morals, public conscience or sufficiently notorious as to bring Respondent and the education profession into public disgrace and disrespect, or that his effectiveness as a teacher has been impaired, as alleged. Accordingly, I shall recommend that the Petition filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Petition for Revocation filed herein be DISMISSED in its entirety. DONE AND ENTERED this 22nd day of August 1979 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1979. COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Gene "Hal" Johnson, Esquire Staff Attorney, FEA/United 208 West Pensacola Street Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: RAYMOND A. BROOKS CASE NO. 79-478 /
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent graduated from college with a degree in elementary education in 1964. His first teaching position was in Dade County. He taught in Dade County from 1964 until 1970 or 1971, when he moved to New Jersey. After teaching for a year or two in New Jersey, Respondent returned to Dade County. He taught for another year or two in Dade County before relocating to California. Respondent did not work as a classroom teacher while in California. Among the jobs he held, however, was that of an education assistant at the San Francisco Zoo, a position which involved contact with children. Respondent moved back to Florida in 1987. Upon his return to the state, he applied for a temporary Florida teaching certificate in the area of elementary education. The Department of Education subsequently issued Respondent Temporary Certificate No. 159246. This certificate was valid from July 31, 1987, through June 30, 1988. Respondent has not held a valid Florida teaching certificate since the expiration of Temporary Certificate No. 159246. During the 1987-88 school year, Respondent was employed by the School Board of Broward County as a classroom teacher on annual contract status. He spent the entire school year at Nova Middle School. J.A. is a student at Nova Middle School. His date of birth is August 4, 1975. For the first nine weeks of the 1987-88 school year, J.A. was in Respondent's fifth period guidance class. He received a grade of "D" from Respondent. Respondent did not have J.A. as a student in any of his classes for the remainder of the 1987-88 school year. They did have some contact, however. On occasion, Respondent would bring into school reading material about reptiles and give it to a student in one of J.A.'s classes. Frequently, J.A., who, like Respondent and the other student, was interested in reptiles, joined their conversation on the subject. During at least one of these conversations, Respondent made reference to the many snakes he kept at home. His collection included approximately 300 snakes which he kept in his garage and other parts of his home. In addition to these snakes, Respondent also had sixteen cages of rats and mice and several turtles. J.A. asked if he could visit Respondent at home and see these animals. Respondent was not receptive to the idea of entertaining J.A. after school. Consequently, J.A. did not view Respondent's collection of animals during the 1987-88 school year. There were other instances during the 1987-88 school year where J.A.'s and Respondent's paths crossed at school. For instance, towards the latter part of the school year, when a substitute teacher with whom he did not get along taught his class, J.A. stayed in Respondent's room to avoid a confrontation with the substitute. J.A. and Respondent did not have any contact during the summer following the close of the 1987-88 school year. They next saw one another at registration for the following school year at Nova Middle School. Respondent had been offered another annual contract by the Broward County School Board and he was to teach the sixth grade at Nova Middle School. J.A. was to be a seventh grade student at the school. J.A. was accompanied at registration by his mother. He and his mother conversed with Respondent about, among other things, Respondent's collection of animals. Following registration, J.A. once again expressed to Respondent his desire to see Respondent's animal collection. This time Respondent capitulated. He told J.A. to have his mother call Respondent so that arrangements for such a visit could be made. Such arrangements were made and a few weeks after August 29, 1989, which was the first day of classes of the 1988-89 school year, J.A. and his mother visited Respondent at his home. During the visit, Respondent mentioned that he needed assistance to care for his animals. J.A. thereupon suggested that he be allowed to assist Respondent. J.A.'s mother indicated that she had no problem with J.A. coming to Respondent's home and helping Respondent. Respondent accepted the offer of assistance and told J.A. and his mother that he would compensate J.A. for the work he performed. Before J.A. and his mother left, Respondent gave J.A. a baby snake as a gift to keep. Following this visit, J.A. went to Respondent's home one or two times a week after school to assist Respondent in accordance with their agreement. For his efforts, J.A. received from Respondent either a snake or $3.50 for each hour he worked. J.A. did not come on any particular day or days of the week. He came when he was needed and when it was convenient for both he and Respondent, provided he had his mother's permission to be there on that particular day. On these workdays, Respondent drove J.A. from school to his home. Upon their arrival, they generally worked for one or two hours and then ate dinner and watched television before Respondent drove J.A. to J.A.'s home. Respondent did not attempt to hide the fact that J.A. was coming to his home after school to help him with his collection of animals. Among the people Respondent told were Steven Friedman, one of the assistant principals at Nova Middle School, Betty Brown, a fellow sixth grade teacher at the school, and Mary Rayder, Respondent's girlfriend. J.A. is not the only young person Respondent has hired to help him care for his animals. Other young persons who have worked for Respondent include a boy Respondent met at a pet shop and the boy's girlfriend; J.S., the teenage son of one of Respondent's friends; and M.F., who at the time was a thirteen year old former student of Respondent's. M.F. came to Respondent's house only once. His parents did not allow him to return because they were concerned for his safety after learning that he had fallen in the lake behind Respondent's home while he and Respondent were "playing around in a boat" and that he had taken a shower in Respondent's home following this incident. M.F. was not fully clothed when he fell into the water. He was wearing a boy's bathing suit that Respondent had loaned him. Although M.F. undressed and took a shower in Respondent's home, Respondent made no sexual advances towards him. There were other occasions during the 1988-89 school year that J.A. and Respondent had contact outside of school. One evening Respondent took J.A. to a lecture at the University of Miami. On another occasion Respondent brought J.A., J.A.'s cousin and J.A.'s friend to his home on a Saturday to allow J.A. to show the cousin and friend Respondent's animals. Betty Brown, one of Respondent's colleagues at Nova Middle School, and her nine year old son were also present during this Saturday visit. One weekend morning a couple of weeks following this Saturday visit, J.A., along with two friends, paid an uninvited visit to Respondent's home. Respondent let them in and quickly showed them his collection of animals. They then left on their bicycles. Although Respondent did not have J.A. as a student during the 1988-89 school year, they did see one another on occasion during the course of the school day early in the school year. Once or twice a week, J.A. went to Respondent's classroom to talk with Respondent about snakes. J.A. also approached Respondent at school on a regular basis to inquire as to when Respondent wanted him to come to Respondent's house to work. J.A. made such an inquiry of Respondent on the morning of Wednesday, October 26, 1988. He told Respondent that he wanted to come over that afternoon after school to work and to look at some photographs of zoo animals that had been the subject of a prior discussion between them. Respondent initially indicated that that afternoon would not be a good time for J.A. to be at his home because he was having some home repair work done and because, in any event, he was not feeling well. Since that previous Saturday, Respondent had been periodically experiencing stomach cramps and diarrhea. On Monday or Tuesday of that week he had made an appointment to see his doctor the following Friday concerning his condition. 2/ By the end of the school day on Wednesday, October 26, 1988, however, Respondent was feeling somewhat better. Furthermore, he had discovered that the person doing the repair work at his home had apparently finished for the day. Therefore, he had a change of mind regarding J.A.'s coming over to his house that afternoon. He so advised J.A. and the two left school together in Respondent's car. They proceeded directly to Respondent's home and arrived at their destination between 4:15 and 4:30 p.m. Upon their arrival, Respondent had J.A. telephone his mother to make sure that she knew that J.A. was at Respondent's home. After J.A.'s mother was contacted, J.A. and Respondent worked in Respondent's garage cleaning cages. At one point, Respondent had to excuse himself because he was again feeling nauseous. He went to the bathroom in his bedroom and remained there for five or ten minutes. When he opened the door of the bathroom to leave, he observed J.A. standing in Respondent's bedroom just outside the bathroom. At another point when they were in the garage together, Respondent noticed J.A. wrap a three and one-half to four foot snake in a newspaper and then place it in a plastic-lined garbage can. Respondent thereupon asked J.A., who appeared to be embarrassed that Respondent had discovered what he had done, "Do you realize what you just did?" Respondent then retrieved the snake from the garbage can and further inquired of J.A. if he had perhaps accidentally discarded a valuable king snake that had been missing from Respondent's collection for several weeks. J.A. responded in the negative. He told Respondent that the cage in which the king snake had been kept "was empty when he opened it." Later that afternoon, while cleaning the cages of some baby ball python snakes that Respondent owned, J.A. said something to the effect that all he would "have to do is throw one of these [baby ball pythons] away and come back and get it later." In response to this comment, Respondent told J.A., "You don't have to do that, [J.A.], you can have one." J.A. and Respondent finished working in the garage at approximately 6:30 p.m. They then ate dinner. After dinner, J.A. asked Respondent if he could look at the photographs that Respondent had taken when he was employed as an education assistant at the San Francisco Zoo. Respondent went to his bedroom closet to get the albums that contained these photographs. J.A. followed Respondent into his bedroom. After the albums were located, Respondent and J.A. left the bedroom and went to the living room where they looked at the photographs. By the time they finished examining the photographs, it was time for J.A. to leave. Before J.A. went home, however, Respondent gave him the baby ball python snake he had been promised by Respondent earlier in the day. Respondent dropped J.A. off at his home sometime between 7:30 and 9:00 p.m. that evening. J.A.'s mother greeted them as Respondent's car pulled into the driveway. For the next fifteen to twenty minutes she and Respondent engaged in a conversation. J.A. went into his house to deposit his snake and to retrieve some containers that belonged to Respondent, but he was present during most of the conversation between his mother and Respondent. Among the matters that J.A.'s mother and Respondent discussed was the possibility of Respondent, one of Respondent's friends and J.A. going on a snake hunting expedition. Respondent doubted that they would be able to go on such an expedition and he so advised J.A.'s mother, although he did not explain to her why he believed they would be unable to go. Notwithstanding Respondent's advisement, in an abundance of caution, J.A.'s mother handed Respondent a signed statement she had prepared authorizing Respondent to seek medical care and treatment for her son in the event they did go on the expedition and there was a medical emergency. The snake hunting expedition was not the only subject of J.A.'s mother's and Respondent's discussion that evening. They also talked about J.A. Respondent reported that J.A. was doing a good job assisting him in caring for his animal collection. His report on J.A., however, was not entirely positive. Respondent also told J.A.'s mother about how J.A., during his Saturday visit to Respondent's home a few weeks earlier, had boarded Respondent's paddleboat without Respondent's permission, paddled across the lake behind Respondent's home and then jumped head-first in the water. Respondent further mentioned to J.A.'s mother that the previous week J.A. had gotten into a heated argument at school with a substitute teacher, which resulted in J.A. being "pulled" from the substitute's class and brought to the teacher's lounge to stay with Respondent. After having been told this by Respondent, J.A.'s mother made mention of a similar incident which occurred the year before and led to J.A.'s suspension. She expressed the view that on this prior occasion J.A. had been treated unfairly by the school administration. At no time during their conversation that evening did Respondent tell J.A.'s mother what had happened earlier that evening in his garage. Although these events had led him to suspect that J.A. had stolen the missing kingsnake and perhaps other snakes, he was not absolutely certain that this was the case and, in view of his uncertainty, he decided not to make an issue of the matter and subject J.A. to parental punishment for an offense he may not have committed. After J.A.'s mother and Respondent finished their conversation, Respondent drove off and J.A. and his mother went into their home. Upon entering the home, J.A. told his mother that Respondent had "tried to suck, lick my penis." 3/ J.A.'s mother reported to the police what her son had told her. Both she and her son were interviewed at the Pembroke Pines police station at around 10:00 p.m. that evening. The following is what J.A. related to the police during the interview concerning his interaction with Respondent that day, as accurately reflected by the interviewing officer's police report: As [Respondent] spoke to J.A. during school hours, [Respondent] asked [J.A.] if he would like to come over after school and help clean cages. [J.A.] advised that he would not be able to today (10-26-88) due to the fact that his mother was expecting him home after school. [Respondent] advised [J.A.] that he would be able to telephone his mother from his [Respondent's] house upon their arrival. [J.A.] agreed to go to [Respondent's) residence and telephone his mother for permission. At the end of the school day [Respondent] and [J.A.] met at [Respondent's] classroom [Respondent] and [J.A.] walked from the classroom (approx 1600) to [Respondent's] vehicle in the parking lot. [Respondent] along with [J.A.] traveled in [Respondent's] vehicle to [Respondent's] residence arriving at approx 1630. [Respondent] and [J.A.] immediately moved to the garage area of the residence, where the snakes are caged, to begin cleaning. Periodically during the cage cleaning [J.A.] would stop to call his mother. [J.A.] was unable to reach his mother until approx 1700 hours when he advised her of his location. [J.A.] then returned to the garage and continued to clean cages with [Respondent]. At approx 1800 hours [Respondent] and [J.A.] agreed to discontinue the cleaning and obtain something to eat. [Respondent] and [J.A.] moved to the kitchen where they began to eat. While [Respondent) and [J.A.] ate they discussed [Respondent's] former job at the San Diego Zoo. [Respondent) advised that he had numerous pictures from the zoo and would like to show them to [J.A.] [J.A.] advised that he would like to see the pictures. As [Respondent) and [J.A.] finished eating, (approx 1900 hours) Respondent led [J.A.] to his bedroom where the pictures were kept. [Respondent) and [J.A.] sat on [Respondent's] bed, hanging their feet over the edge, and began looking at the photo albums. While [J.A.] was seated on the edge of the bed, [Respondent] repositioned himself on the floor directly in front of [J.A.]. [Respondent] then reached forward and grabbed [J.A.'s] pants zipper and pulled it down. 4/ [J.A.] was surprised when he felt the pulling on his zipper due to the fact that [Respondent] had positioned himself behind the photo album [J.A.] was examining. [J.A.] dropped the photo album 5/ and attempted to push [Respondent] away. [Respondent] overpowered [J.A.] and reached inside [J.A's] pants taking hold of [J.A.'s] penis. 6/ [Respondent] leaned over and began to lick and suck on [J.A.'s] penis. [J.A.] struggled free and advised [Respondent] that he was not that kind of person. [J.A.] then advised [Respondent] that he wanted to go home. [Respondent] agreed to take [J.A.] home; however, insisted that [J.A.] take one of his pet snakes as a gift. [J.A.] accepted the snake; however believes that [Respondent] gave him the snake as a bribe so he would not relate what had taken place to anyone. [Respondent] along with [J.A.] traveled to [J.A.'s] residence at approx 2000 hours. At around 1:00 a.m. on October 27, 1988, J.A. was examined by a physician at the Sexual Assault Treatment Center in Fort Lauderdale. The medical examination revealed no abnormalities. There were no cuts, bruises, or marks on J.A.'s genitals nor any other evidence suggesting that he had been sexually molested as he had falsely claimed to his mother and the police. Respondent reported to work on October 27, 1988, although he was not feeling particularly well. During the morning, his condition worsened and he requested permission to go home for the day. He did not call his doctor, inasmuch as he already had an appointment scheduled for the following day. Before he left, he gave a statement to a Pembroke Pines police officer who had come to the school to interview Respondent as part of his investigation of the allegations that J.A. had made against Respondent. The police officer was accompanied by a School Board of Broward County investigator. Upon being told of the accusation that J.A. had made, Respondent truthfully denied that anything of that nature had taken place the day before. He stated that he could think of nothing out of the ordinary that occurred that evening. When asked what might motivate J.A. to falsely accuse him of wrongdoing, Respondent was unable to offer any answer. He indicated that he thought that they had a friendly relationship. That same day, Respondent was suspended with pay from his position at Nova Middle School based upon the allegations of sexual misconduct made against him by J.A. He thereafter was suspended without pay by action of the School Board of Broward County based on these same allegations. Respondent has never before been accused of any similar act of misconduct. Furthermore, he has a good reputation for truth and veracity amongst his friends and associates. On June 30, 1989, Respondent's annual contract with the School Board of Broward County expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that (1) the School Board enter a final order dismissing Petitioner Morgan's charge of sexual misconduct against Respondent and providing Respondent with appropriate relief pursuant to Section 231.36(6)(a), Florida Statutes, and (2) the Education Practices Commission enter a final order dismissing the Administrative Complaint filed by Petitioner Castor against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of October, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1989.
The Issue The issue is whether Petitioner should discipline Respondent's teaching certificate for immorality, misconduct in office, or incompetency in connection with his supervision, as a high school baseball coach, of a team trip, during which hazing occurred, and his subsequent investigation of the incident.
Findings Of Fact Respondent has been a teacher and a coach for 27 years. He taught and coached in Illinois for 11 years before moving to Florida, where he has taught and coached in Florida for the past 16 years. He currently is teaching health, and he sometimes teaches physical education. Respondent holds Florida Educator's Certificate 551145, which is valid through June 30, 2005, and he is certified in health education, physical education, and social science. Respondent has coached basketball, football, and baseball. Most recently, Respondent was the head baseball coach at Coconut Creek High School where he was the Fort Lauderdale Sun-Sentinel Coach of the Year for Broward County three years ago. He coached baseball four years at Coconut Creek High School and the preceding eight or nine years at Fort Lauderdale High School. The events in this case arose during the 2000 season; Respondent did not coach during the 2001 season. During spring break of 2000, Respondent took his baseball team to Orlando and Sebring. The purpose of the trip was to allow the team to play two high-school baseball games against teams from different regions of the state and to visit an Orlando theme park. The trip took place toward the end of the season, prior to the commencement of the district tournament. The Orlando trip extended from Sunday, April 16, through Wednesday, April 19. Twenty-four student athletes went on the trip. In addition to Respondent, the other adults supervising the students were assistant coaches Reynaldo Nieves, Joseph Leone, and Rex Nottage. Respondent's wife was also with him, as were several parents, but they did not share with Respondent and the assistant coaches supervisory responsibility for the students. On arriving in the Orlando area early in the morning, the group first visited Islands of Adventure, a theme park. They finally reached their hotel at about 8:00 p.m. Respondent gathered the students together and gave them directions as to where they could go. He told them they could not leave the motel property without the permission of a coach. Some students wanted to eat; most wanted to shower. Respondent told them they had to be in their rooms by 11:00 p.m. and their lights must be out by midnight. Respondent warned them that he and the other coaches would perform bed checks at these times. Respondent and his wife had arranged the rooms so that the group was together at the motel. Their rooms were on the second or third floor of the motel. Each room accommodated four students. Respondent and his wife were in a room, Mr. Leone was in a room, and Mr. Nieves and Mr. Nottage shared a room. The students' rooms were between the rooms of the adults to enable the adults to exercise closer control over the students. At some point prior to the first bed check, the older students began entering the rooms of the younger students, by trick or by force. A large group of the older students would then overpower the younger student and, typically, apply Icy Hot liniment to a towel and then to the testes of the student. The students were aware that this hazing was likely to occur during this trip. Seven of the students were hazed by nearly all of the remainder of the team. Prior to being hazed himself, D. B. was aware that other students had been hazed and was aware of the form of the hazing because some of the other students had come to D. B.'s room and asked to use the shower. D. B. was a junior, but this was his first year on the varsity, and he knew that the older students would try to haze him too. However, he did not try to contact one of the coaches or parents to intervene in the half hour that D. B. estimates elapsed between the hazing of the last of the other students and his hazing. As had happened to most of the other hazed students, most, if not all, of the older students on the team entered D. B.'s room, pulled down his pants, and applied Icy Hot and shaving cream to his genital area. D. B. yelled and struggled against four or five students on various parts of his prone body. He sustained some minor scratches while he was held down for about one minute. As soon as he was released, D. B. took a shower. He chased the remaining students out of his room, swinging a belt and yelling. While in the shower, D. B. was so angry that he threw soap and shampoo containers in the shower stall. About ten minutes after D. B. was hazed, Mr. Nieves was roaming the rooms and entered D. B.'s room. D. B. testified that the hazing took place around 9:00 to 9:30 p.m. If so, Mr. Nieves entered the room around 9:10 to 9:40 p.m. When Mr. Nieves entered D. B.'s room, he found him in a bad mood. D. B. was throwing things around the bathroom and seemed mad. The door to his room was open, so Mr. Nieves walked inside and asked if he was okay. D. B., who was wearing only a towel wrapped around his waist, did not answer, but left the bathroom and stood in front of the wall air conditioning unit, which was blowing cold air. Mr. Nieves saw about five marks on D. B.'s back and saw that D. B. was beet red. The marks appeared as though someone had been grabbing him. Mr. Nieves offered to get Respondent, and D. B. said to do so. Mr. Nieves thought that D. B. had been wrestling or something. His visit to D. B.'s room had occurred not long before the first room check. Mr. Nieves walked down the hall to Respondent's room and found Respondent inside. Mr. Nieves informed Respondent that D. B. wanted to talk to him. He told Respondent that it looked like something was wrong. Respondent and Mr. Nieves returned to D. B.'s room. They arrived there about three minutes from the time that Mr. Nieves had left the student's room. Respondent entered D. B.'s room ahead of Mr. Nieves and found D. B. standing in front of the air conditioning fan, holding the towel open like he was cooling down. In a conversation that lasted about 30 seconds, Mr. Nieves said to D. B., "Coach is here. Tell him what's wrong." Respondent added, "What's wrong?" To these inquiries, D. B. replied, "Nothing. Don't worry about it." Mr. Nieves and Respondent asked about the red marks, but D. B. said they were nothing and everything was fine. D. B. testified that he did not disclose the hazing because he knew that Respondent would punish the team. He assumed that the team would be upset with D. B. for telling the coach that they had done something of which Respondent disapproved. Somewhat irritated that D. B. had asked to see Respondent and three minutes later declined to tell him anything, Mr. Nieves left the room with Respondent. They then completed the bed check, and Mr. Nieves did not see Respondent again that night. However, Mr. Nieves returned to D. B.'s room about a half hour later. He found D. B. still standing by the air conditioning fan. Mr. Nieves told D. B. that it was not fair to Mr. Nieves to say to Respondent that nothing was wrong. Mr. Nieves then asked if something was wrong. D. B. replied, "They got me, coach." Mr. Nieves did not know what he meant, but thought that D. B. meant some sort of rough-housing. Mr. Nieves asked D. B. why did you not say something to Respondent. Mr. Nieves spent about 15 minutes in D. B.'s room, but did not learn anything more specific. However, D. B. expressed considerable anger to Mr. Nieves. The Icy Hot that came into contact with D. B.'s penis was most painful. The next morning, the pain was somewhat reduced. Early that morning, the team went to a baseball field to prepare for a game that day. They did a lot of situational baserunning so the fielders could practice. Because D. B. was not a starter, he and the other nonstarters had to do much of the baserunning. He displayed no problems running in the morning. However, hours later, during the pregame practice, a ball was hit toward D. B. in the outfield. He charged it, but it got by him. Instead of turning and running after the ball, as Respondent required of all players, D. B. turned and walked toward the ball. Seeing D. B. and another student not hustling, Respondent pulled them off the field. When Respondent demanded to know why D. B. had not run after the ball, D. B. said that "my balls are on fire." D. B. had a poor attitude at times and was stubborn. Without responding meaningfully to D. B.'s explanation, Respondent benched both players for the entire game. D. B.'s explanation is discredited due to his ability to run without impediment in the morning. D. B. had called his parents Monday at around noon and had told them what had happened the prior evening. D. B. called them again after the afternoon game. During the first call, D. B.'s parents told him to defend himself if necessary and not to worry about talking to Respondent about the hazing. Respondent had not been feeling well Sunday night. By the time of practice Monday morning, his throat was so sore that he had to have his assistant coaches direct the students on the field and yell instructions. After the game, in which Respondent's team had played poorly and lost, Respondent spoke only briefly to the team and allowed Coach Nottage to yell at the students to fire them up and make them work harder. After the team had returned to the motel, Mr. Nieves talked to D. B.'s roommates. He was somewhat concerned about D. B. because, after the game, when he had asked the student what was wrong, D. B. had only laughed as if he were mad. The roommates talked vaguely about Icy Hot, but they were unwilling to be more specific. Around 8:00 or 9:00 p.m. Monday at the motel, D. B. came to Respondent's room and asked if he could talk to the coach for a minute. Respondent said he could. D. B. then told Respondent that he had had Icy Hot put on his testes. Whispering, Respondent asked if he was alright and what did D. B. want Respondent to do about it. The record is unclear whether he asked this in a challenging or inquisitive tone. D. B. did not add more details. On Tuesday morning, the team departed Orlando in vans headed for Sebring, where they were to play another game Tuesday night. Respondent had been quite sick Monday night, unable to swallow or talk. By Tuesday, he was even more sick. No one spoke to him about D. B. or hazing. With considerable effort, Respondent was able to escort the team to the Sebring motel, and then he went directly to a nearby hospital emergency room. Diagnosed as having pharyngitis, Respondent obtained an injection of antibiotics, which provided him relief the next day. Scheduling problems resulted in postponing the Sebring game, so that the team did not return to the motel until after 11:00 p.m. Respondent directed the students to go directly to their rooms and told them that there would be a midnight bed check. Late the next morning, Wednesday, the team left Sebring to return to Fort Lauderdale, where they arrived at 3:00 p.m. One of the parents traveling with the team told Respondent at a gas stop that D. B. had called his parents. Respondent summoned D. B. and complained about D. B. calling his parents without first informing Respondent of the problem. The conversation was brief because the group was waiting in their vans. D. B. replied, "Well, coach, you know what happens." Respondent answered, "I don't know what happens. Go get in your van." On the way back to Fort Lauderdale, Mr. Nieves told Respondent what he knew about hazing in the form of older students applying Icy Hot to the genitalia of younger students and, in some cases, paddling younger students. Respondent expressed his frustration that D. B. had not complained to him about the hazing. When they returned to Fort Lauderdale, Respondent told D. B. that he wanted to speak to him and his father, who was there to pick him up. However, D. B. and his father left the school without speaking to Respondent. Respondent decided to call a team meeting to find out what had happened. Respondent called D. B.'s mother to assure that D. B. would come to the meeting, but she said that he was at work and that she had already called the school board. D. B. was not at work. In the team meeting, Respondent warned the students that hazing was very serious. He asked for those persons directly and indirectly involved to identify themselves. Various students began raising their hands, admitting to various levels of involvement, and Mr. Nottage recorded their names, at Respondent's direction. Respondent then warned the students that the school board was involved and there could be criminal punishments for certain persons. He told the students that there was nothing that he could do about these consequences, but he would take his own actions. At this point, many of the students began retracting admissions. Feeling that the notes had become useless, Respondent obtained the notes from Mr. Nottage and discarded them later that weekend. Prominent among the many differences in testimony concerning the events of this trip and its immediate aftermath is a difference in recollection between Respondent and Mr. Nieves concerning a conversation between the two of them following the meeting. Mr. Nieves testified that Respondent instructed him to deny that the notes existed, and Respondent denied that this is true. Such dishonesty, if true, would merit punishment. It is possible that Respondent did ask Mr. Nieves to conceal the truth in order to protect Respondent's students, who had made confessions prior to understanding the potential administrative and criminal consequences. Perhaps Respondent regretted his role in securing this inculpatory information. On the other hand, Mr. Nottage, as well as over 22 students were at this meeting (another student had failed to attend), so Respondent had to know that such a concealment was unlikely to go undetected. Most importantly, though, Mr. Nieves was a most unconvincing witness. His recollection of details was poor, contradictory, and entirely inconsistent with his apparent intelligence. His demeanor was poor. The Administrative Law Judge was left with the opinion that Mr. Nieves was lying at the time that he first provided statements concerning the events--for some reason, trying unfairly to inculpate Respondent or to exculpate himself--or he was lying at the hearing--belatedly, trying to protect Respondent. On balance, it is impossible to credit Mr. Nieves' testimony on this crucial point. After talking the matter over with Mr. Nieves and Mr. Nottage (Mr. Leone had already left before the meeting), Respondent decided to punish the students as best he could by making them run. Those who had actually touched the younger students had to run 10 miles. Older students who had stood by and encouraged or supported the hazing had to run an intermediate distance. Even the victims, such as D. B., had to run because they had not reported the hazing, but their distance was the shortest. The team had a game the next morning. Late in the afternoon or early in the evening on Thursday, Respondent called his supervisor for athletics, the Coconut Creek High School athletic director, and reported the hazing in general terms. The athletic director told Respondent that he had done the right thing by calling him and said to come see him Monday, when school was back in session. On Saturday morning, Respondent required the students to run the distances that he had determined appropriate. He also informed the team that he would be recommending to the principal that the baseball team not take field trips. The athletic director later suggested that Respondent not make that recommendation. D. B. and his parents have filed a civil action against the school board for damages arising out of the incident. School officials have known that hazing has been a problem in the past at Coconut Creek High School, although more with the soccer team. In 1997, the athletic director asked Respondent, as the baseball head coach, to draft a letter stating a policy prohibiting hazing. Addressed to the parents of baseball players, the letter states in part: "The athletic department has a policy of zero tolerance when it comes to 'initiating' or 'hazing' a fellow student. Anyone guilty of participating in a hazing or a form of initiation will be immediately dismissed from the team." Respondent and the athletic director signed the letter. At the start of the 2000 season, Respondent warned the students on the team that he would not tolerate any sort of misbehavior, including hazing. Respondent had not been aware of any hazing incidents on the baseball team since 1997. As already noted, other students knew of the continuation of the practice. Some of the parents of the older students also knew of the practice, at least as it had been inflicted on their sons. However, it does not necessarily follow that what a student shares with a parent, he also shares with his coach. Petitioner has failed to prove gross immorality or moral turpitude on the part of Respondent. Petitioner has failed to prove a violation of any of the Principles of Professional Conduct. Petitioner has failed to prove that Respondent failed to make reasonable effort to protect a student from conditions harmful to learning, his mental health, or his physical health and safety. Petitioner has failed to prove that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Petitioner has failed to prove that Respondent has failed to maintain honesty in all professional dealings. The evidence does not establish that Respondent knew or had reason to know that hazing was about to occur or that hazing had occurred. At all times, Respondent was in charge of 24 students, and, most of the time, he was sick--after Sunday, very sick. The scrutiny that Respondent could reasonably be expected to give the D. B. situation, especially given the student's reluctance to make a straightforward declaration of what happened, must be assessed n light of these circumstances. As the last person to be hazed, D. B. had ample opportunity to alert the coaches. After the hazing, D. B. repeatedly declined to disclose the problem to Respondent. D. B. knew that Respondent did not condone hazing. D. B. knew that, rather than ignore a hazing complaint, Respondent would punish the responsible players, and this would draw unwanted attention to D. B. Seeking advice from his parents, D. B. was reinforced in his earlier determination not to seek the effective remedies that he knew were available within the structure of the team. Respondent's investigation was sufficient for imposing intra-team discipline. His apparent departure from school policy of dismissal from the team may be explained by Respondent's awareness that the school board and possibly law enforcement would also investigate the matter and impose their own sanctions; presumably, the athletic department policy was intended to operate in isolation. Although Respondent could have informed the athletic director of the problem Wednesday night or Thursday morning, Respondent did so later Thursday. This brief delay caused no prejudice, as Respondent's supervisor assured Respondent that he had done the right thing and he would visit him the next Monday.
Recommendation It is RECOMMENDED that the School Board of Broward County, Florida, enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of September, 2001. COPIES FURNISHED: Kathleen M. Richards Executive Director Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore Chief, Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Honorable Charlie Crist, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Robert F. McKee Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675-0638 Robert E. Sickles Broad and Cassel 100 North Tampa Street, Suite 3500 Tampa, Florida 33602
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 30th day of April, 2018.
Findings Of Fact Clarence Dixon, Respondent, holds Teacher's Certificate No. 435879, Rank III, covering the area of physical education, which expires on June 20, 1984. At all times material hereto Respondent was employed by The School Board of Broward County at its facility known as Piper High School located at 800 Northwest 44th Street, Sunrise, Broward County, Florida. In that cause of action styled School Board of Broward County v. Clarence Dixon, Division of Administrative Hearings Case No. 81-1223, the Honorable R. T. Carpenter, Hearing Officer for the Division of Administrative Hearings, entered his Recommended Order directing [sic] that the Respondent, Clarence Dixon, be discharged as a teacher by The School Board of Broward County. Before the Broward County School Board acted on the Recommended Order of the Hearing Officer, Respondent submitted his resignation, further proceedings against him were terminated and no final order was entered by the Broward County School Board regarding the charges that had been preferred against Respondent. Exhibit 2, the Recommended Order in Broward County School Board v. Clarence Dixon, was admitted into evidence over objection by Respondent, for the limited purpose of showing that the hearing was held. Respondent's stipulation of admitted facts (Finding No. 3 above) admits more than that for which Exhibit 2 was admitted into evidence. The investigation of Respondent's conduct started when Sandra J. Brown, a security officer at Piper High School, overheard some students in the hall discussing Respondent. She then called one of these girls to her office to inquire into any contacts she had with Respondent. When it became evident that Respondent's statements or conduct towards the student may have been inappropriate, the student was taken to the Assistant Principal who, after hearing the story, directed Brown to investigate. As a result of this investigation, the School Board brought charges against Respondent, and, after those charges were disposed of, the proceedings here involved were instituted. Although Respondent disputes the testimony of the three complaining witnesses, McGee, Johnson and Snelling, their testimony was credible and believable, Some testimony was presented to show that Ms. Brown was carrying out a vendetta against Respondent in conducting the investigation; that at least one of the complaining witnesses had a "bad" reputation, meaning that she "came on to men"; that Dixon had told Ms. Brown about a dream he had about her involving sex; that Respondent, like other coaches specifically, was looked up to and frequently approached by students to discuss their problems; and that these incidents had been blown out of proportion to their seriousness. Evidence of misconduct unrelated to the specific charges involving McGee, Johnson and Snelling, has been disregarded as irrelevant to the charges here under consideration. On one occasion during the 1980-1981 school year at Piper High School Respondent approached Lesia McGee, a 16-year-old sophomore, in the hall between classes and commented on the clothes she was wearing and said the next time he saw her in purple slacks he would, as she testified, "tongue me to death." By that, McGee understood that he meant to kiss her. Valynda Johnson was a junior at Piper High School during the 1980-1981 school year and she had no classes under Respondent. She and Respondent talked on campus about how she dressed and various things unrelated to school. On several occasions he sent passes to her to leave class to come talk to him. Some of these times she was excused by her teacher and the conversation did not relate to school work. On one occasion Respondent asked Johnson when she was going to let him do it to her. When she replied "What do you mean?," he responded "You know what I mean." Johnson understood him to be talking about sex. Respondent asked Johnson to meet him at the 7-11 store down the street from the school and called her at her home on one or two occasions. She never went out with Respondent and no physical contact was made between Respondent and Johnson. Respondent had a gold chain delivered to Johnson from him by one of the football players. Respondent's testimony that he found this chain under a garbage can at school and, when he held it up in class to ask whose it was, Johnson claimed it, is not believed. The Amended Administrative Complaint alleges Respondent gave a gold bracelet to Renee Snelling and this complaint was amended at the close of the hearing to change the bracelet to a chain to conform to the evidence. No evidence was submitted that Respondent gave Snelling either a chain or a bracelet. Renee Snelling was an 18-year-old student at Piper High School during the 1980-1981 school year. On one of the first occasions she talked to Respondent he told her she should be a model. Her career as a model was the dominant theme of most of their subsequent conversations. Respondent suggested she go to college and become a model. On one occasion he asked if they had sex would she tell anybody. On another occasion he told her he had a necklace for her. He never cave her the necklace but showed it to her one time when he removed it from his wallet. He called Snelling at her home on one or more occasions to ask her to go out. When Respondent returned from a trip to Moorhead College in Kentucky with some of the football players he took there in his own car to increase their interest in college, he brought back a T-shirt which he had delivered to Snelling by one of the football players. On one occasion Respondent sent a pass to Snelling but she does not recall if she left class to see him in response to the pass. The only occasion Respondent mentioned sex to Snelling was when he inquired if she would tell. The policy at Piper High School regarding passes is that they are used only with respect to school business, and rarely. If a student is in a class he cannot leave that classroom without the permission of that classroom teacher even if he receives a pass from another teacher. Respondent graduated from Pahokee High School in 1974 where he was a football star and a campus leader. With the ecouragement of his coaches, Respondent obtained a football scholarship at Bethune-Cookman College, from where he graduated in 1979. He is appreciative of the help and encouragement he received from his coaches and teachers and desires to repay that debt by helping others as he was helped. In doing this, he encourages all of the kids he talks to to go to college and get an education. When Respondent resigned from Broward County School System, he obtained a job at Pahokee High School in the Special Education Department teaching students with learning disabilities. His principal feels Respondent is doing an excellent job at Pahokee and that he is an asset to the school. During his year at Pahokee Respondent volunteered to coach and led the girls' track team to runner-up position in the state championships. He also took over the cross-country track team, which had been cancelled, and led this team to the district championship. He has continually encouraged students to continue their educations throughout high school and has gone out of his way to help them get scholarships, grants and other assistance towards this goal. Both Respondent and his wife have taken students, with parental consent, to out-of-town games, have had students over for dinner, have driven them to athletic contests, have provided transportation home from football practice which extended beyond the bus schedule, and generally have devoted considerable after-school-hours time to helping and encouraging students to attain higher standards in life.
