The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
The Issue The issue is whether Petitioner had just cause to discipline Respondent and; if so, what discipline should be imposed for Respondent’s actions.
Findings Of Fact Parties Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Lake County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was a physical education (“PE”) instructor at Clermont Middle School. During the 2016-2017 school year, Mr. McCallion was assigned to instruct five classes with 40 students in each class, for a total of 200 students. As a PE instructor Mr. McCallion maintains records for students, including students in the Exceptional Student Education (“ESE”) program. The student files contain confidential information, including student 504 plans, Individual Education Plans (“IEPs”), student grades, teacher comments regarding students, social security numbers, and personal health information. Mr. McCallion maintained the student records in five binders and stored them on a cart so he could easily transport the records between his office and the class meeting location. When class was not in session, the records were stored in Mr. McCallion’s office. In addition to student files, Mr. McCallion stored his school-assigned lap top; his personal effects, including his wallet and car keys; and money collected from students for school-related activities in his office. Office/Security of Records In accordance with the Collective Bargaining Agreement, Mr. McCallion was assigned an office located in the boys’ locker room. He did not share his office with any other school employee. However, there were reportedly 20 keys issued to individuals that could be used for Mr. McCallion’s office. Mr. McCallion shared with the school principal, Mr. McCue, his concern about the number of keys to his office. School Board Policy 5.70 states that “rules and procedures for maintaining student records shall be consistent with Florida Statutes, State Board of Education rules, and “Federal Education Rights and Privacy Act” (“FERPA”) and “Privacy Rights of Parents and Students.” Rule 6A-1.0955 requires that student records used or maintained by a public institution or agency be protected in accordance with FERPA. Further, this rule requires that the confidentiality of the student records be maintained from unauthorized or unintentional access and that the school principal or designee is responsible for those records at the school level. Mr. McCue acknowledged that the security of student records is important and that it was Mr. McCallion’s responsibility to secure the records. Mr. McCallion did not have a locked file cabinet in his office. The testimony at hearing revealed that there was a room within Mr. McCallion’s office that could be used to store files. However, that room did not have a lock. While Mr. McCue stated there were other alternatives within Mr. McCallion’s office that could be used to store files, all other options known to Mr. McCallion would not provide the same security as a locked office. Events Giving Rise to This Proceeding On February 9, 2017, Mr. McCallion was scheduled to work the usual school day followed by car duty until 4:15 p.m. On the same evening, two basketball games were scheduled to take place in the school gym, beginning with the boys’ game at 5:30 p.m. After car duty, at approximately 5:15 p.m., Mr. McCallion returned to his office and discovered a male referee changing clothes in his office. Mr. McCallion had not given the referee permission to use his office and had no knowledge who gave him permission. Although each room at Clermont Middle School could be rented through a rental agreement, Mr. McCue confirmed at hearing that the referees did not have an agreement to use Mr. McCallion’s office. The undersigned finds that the security of the student records was compromised when an unauthorized person had access to them. Mr. McCallion went to the gym and spoke with the athletic director, Coach Seabrook. Mr. McCallion expressed his “concern” about the referee using his office without his prior knowledge. According to Mr. McCallion, Coach Seabrook advised him that she allowed the referee to use his office because she did not know where to put him. Concerned, in part, for the safety of the student records, Mr. McCallion decided to replace the lock on his office door. He purchased a lock from the local Lowe’s home improvement store, removed the School Board-owned lock, and replaced that lock with the lock he purchased at Lowe’s. The boys’ game had ended when Mr. McCallion finished changing the lock, so he placed the referee’s personal items on a bench within the locked locker room. The referee’s personal items were secure because all persons with access to the locker room after the game ended were school personnel. Mr. McCallion did not have permission from Mr. McCue or any administrator to replace the lock on his office door. Approximately five days later, he told Mr. McCue about the lock change. Unbeknownst to Mr. McCallion, at some point after the boys’ game started on February 9, 2017, Mr. McCue arrived at the game. The athletic director approached him and told him that Mr. McCallion had a conversation with her about using his office for the referees to change. However, Mr. McCue and Mr. McCallion did not see each other at the game. After the game, Mr. McCue went to let the referee into Mr. McCallion’s office to retrieve his personal items. He walked through the locked boys’ locker room to get there. Mr. McCue’s key did not work on the office door. He asked the athletic director and her key did not work either. Then, Mr. McCue asked the custodian to try his key without success. It was about this time that Mr. McCue noticed that the referee’s personal items were on a bench in the locker room and they had walked past them. Mr. McCue also noticed that the door handle/lock to Mr. McCallion’s office had been replaced with an unauthorized lock. School Board policy requires that only authorized district personnel may change locks on school board property. Prior Discipline Prior to the February 2017 incident, Mr. McCallion had prior discipline which arose from an incident involving damage to school property (a door lock). During the 2013-2014 school year, Mr. McCallion chaperoned a school field trip. He returned from the field trip after 6:30 p.m. and discovered that the locks to the gym had been changed. Mr. McCallion was unable to access his office to retrieve his personal items. Then, he used a pocket knife to gain access to the gym, which caused damage to the gym door handle. Due to Mr. McCallion’s actions, he was issued a Level II written reprimand on April 15, 2014. After the incident, Mr. McCue discussed the circumstances with the employee relations office. They discussed the School Board’s policy on progressive discipline. Petitioner has adopted, as policy, section 6.361 of the School Board of Lake County, an Employee Discipline Plan. The Employee Discipline Plan includes a Progressive Discipline Method by which sanctions are graduated based on the severity of the occurrence, and on whether it has recurred. The purpose of the policy is to let employees know the nature of the violation and provide an opportunity to correct the behavior. Each subsequent offense calls for the next step in discipline. On February 15, 2017, Respondent discussed the incident with Mr. McCue. On February 27, 2017, Mr. McCue issued a letter notifying Respondent that he would recommend to the Superintendent that Mr. McCallion be suspended without pay for one day for his actions. Mr. McCallion’s complete employee file was not presented at the hearing. However, the performance evaluation documents that were entered into evidence show that he was an employee of the School Board for at least the past 12 years and had received satisfactory evaluations in the area of classroom instruction and supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lake County School Board, enter a final order: dismissing the allegations in the notice of recommendation of suspension that Respondent failed to appropriately communicate with colleagues and administrators; finding that Patrick McCallion engaged in misconduct by removing the lock on his office door without authorization and replacing it with an unauthorized lock; and finding that Lake County School Board had just cause to discipline Patrick McCallion with a one-day suspension without pay for misconduct in office. DONE AND ENTERED this 6th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 6th day of October, 2017. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin and Burnsed 1000 West Main Street Post Office Box 491357 Leesburg, Florida 34749-1357 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Diane S. Kornegay, M.Ed. Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether Respondent's educator's certificate should be disciplined.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 975296. He has been employed as a teacher with the Hernando County School Board for six years. During the 2009-10 school year, Respondent taught 11th grade English III at Central High School. As a teacher, Respondent expects his students to behave and pay attention. He expects his students to interact with him about the lesson, and he expects the students to stay awake in class. On February 16, 2010, near the beginning of his second class of the morning, Respondent noticed several students had their heads on their desks and appeared to be sleeping. One of these students was K. G. K. G. was 17 years old at the time and was approximately 5 feet, 8 inches tall and weighed 145 pounds. Respondent attempted to awaken K. G. by calling his name, but K. G. did not respond. Respondent became, in his own words, "not angry," but rather “frustrated” and “perturbed” when K. G. did not wake up. Respondent knew that K. G. would not get the material if he was not awake, and Respondent felt that it was his responsibility as the teacher to try and keep the students engaged during class. After K. G. did not respond, Respondent went over to K. G.’s desk, took hold of a leg of the desk with one hand, put his other hand under the desk, and shook the desk. Respondent shook K. G.'s desk with the intention of waking K. G. Respondent did not intend to push the desk over. Nevertheless, while Respondent was shaking the desk, K. G.'s desk flipped over while K. G. was in it. After he fell, K. G. got up and threw the desk back toward Respondent, cursed, abruptly left the classroom, and reported the incident to the assistant principal. Respondent attempted to continue to teach, but the class was disrupted and would not settle down. Respondent then calmly asked Beverly Salkin, a substitute teacher who was assisting in Respondent's classroom that day, to please take over the classroom. After that, Respondent went to the front office, clearly upset, and reported the incident to Principal Joe Clifford. Respondent told Mr. Clifford that he had done something really stupid, that he was not feeling well, but there was no excuse for his behavior. Respondent reported to Mr. Clifford that K. G. was sleeping in the classroom and that he had flipped the desk while K. G. was in it so that the student landed on the floor. Mr. Clifford then went to the assistant principal’s office to check on K. G. to find out whether he was injured. K. G. told Mr. Clifford that he had already hurt his hand2/ but reinjured it in the fall from his desk. The school nurse checked K. G.’s hand and put ice on his hand. K. G. did not seek further medical treatment for his hand, and attended sports practice a day or two after the incident. Respondent asked Mr. Clifford for permission to apologize to K. G. for what he had done. Mr. Clifford allowed Respondent to apologize to K. G., and Respondent apologized to K. G. that same day. Respondent showed remorse and concern when he apologized to K. G. In reaction to the incident, Mr. Clifford removed Respondent from the classroom and reported the incident to Heather Martin, the Executive Director of Business Services for the Hernando County School District. The same day, Mr. Clifford asked some of the students and Ms. Salkin who were in the classroom during the incident to write a statement regarding what had occurred. Mr. Clifford also prepared an Employee Conference Form and a statement regarding his interviews with Respondent and K. G. Later that day, Mr. Clifford met with Respondent and Respondent’s union representative. At that meeting, in the presence of his union representative, Respondent again stated that he had flipped over a student's desk while the student was in it. Mr. Clifford completed the Employee Conference Form in the presence of Respondent and his union representative. On the form Mr. Clifford wrote “Mr. Budd self-reported that he flipped over a student while that student was sitting at his desk.” Respondent and his union representative were given an opportunity to review the completed form and request changes if necessary. Respondent signed the form and did not state that anything on the form was incorrect. Mr. Clifford then forwarded the Employee Conference Form, his statement, and the witness statements to Heather Martin. Heather Martin’s responsibilities include handling teacher discipline matters for the school district. On February 17, 2010, Ms. Martin received the report from Mr. Clifford. Following her receipt of the report, Ms. Martin scheduled a predetermination meeting with Respondent and his union representative. On February 25, 2010, Ms. Martin met with Respondent and his union representative. During the meeting, Respondent told Ms. Martin that K. G. had fallen asleep in class, that he had tried to get K. G.’s attention, and at that when K. G. did not respond, he grabbed K. G.'s desk, shook it, and the desk flipped over and K. G. fell on the floor. During the meeting, Respondent admitted that he went to K. G.’s desk with the intent to shake the desk, and that he “took ahold of a leg here and somehow used [his] other hand under the desk.” After the meeting, a written summary of the meeting was prepared. Copies of the summary, statements from classroom witnesses, the employee form, and Mr. Clifford’s statement were all given to Respondent. Respondent was informed that he had ten days to rebut any information in those documents, which he did not do. After investigation, the school district determined that Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(a) and (3)(e), and gave Respondent a letter of reprimand and a two-day suspension without pay. Respondent did not challenge the determination and accepted the discipline in order to put the incident behind him. According to Mr. Clifford, the appropriate course of action to awaken a student sleeping in class is to use proximity or tap on the students’ desk. Mr. Clifford testified that he would not recommend taking a hold of a student's desk and shaking it. Respondent explained at the final hearing that he had already tried other methods of getting students' attention that day, including tapping on a number of desks. Evidence of Respondent's demeanor both at the final hearing and during his earlier explanations to his superiors demonstrated that Respondent regrets the results of his actions. In his testimony at the hearing, Respondent explained, however, that he did not know how his actions resulted in the desk turning over. Respondent further explained that he would never put his hands on a student. Prior to the instant action, Respondent did not mention that he thought K. G. might be responsible for the desk falling over. However, during depositions and at the administrative hearing in this case, Respondent suggested that K. G. may have contributed to the desk falling over by lurching when the desk was shaken. Respondent also testified that he (Respondent) may have inadvertently assisted in the desk falling over by pulling it back away from K. G. as it went over in order to avoid injury to K. G. It is found that Respondent's other explanations for K. G.'s desk falling over, although stated later than his initial explanations of the incident, are not inconsistencies or excuses, but rather are reflective of Respondent's attempts to explain a result which the credible evidence showed he never intended. It is also found that Respondent never intended to embarrass or ridicule K. G., and, further, that K. G. was not embarrassed by Respondent's actions. While the whole school knew about the incident within an hour, some students teased K. G. and made jokes about the incident, and the incident was reported in the local newspaper, K. G. did not testify that he was embarrassed by Respondent's actions. In fact, K. G. laughed at jokes about the incident. Prior to the incident, Respondent had never used the technique of shaking a student's desk to awaken a student. During the final hearing, Respondent gave credible testimony that he never intends to use that technique again.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 17th day of October, 2011.
