The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. 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 25th day of April, 1996.
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 25th day of April, 2017.
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school monitor as alleged in the Notice of Specific Charges filed January 25, 1995.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by the Petitioner as a security monitor at Hialeah-Miami Lakes Senior High School, one of the public schools in Dade County, Florida. The job duties as a school security monitor require him to patrol the school propery to detect and prevent illegal activity on school premises, to prevent unauthorized persons from coming on campus, and to report to the school administrators any problem or potential problem observed on school grounds. Prior to the incident that resulted in this termination prooceeding, Respondent had been reprimanded for sexually harrassing three female students. Respondent had attended conferences at which he was informed as to how he was expected to conduct himself on the job and how he was to interact with members of the public, students, teachers, and administrators. Following his reprimand, Respondent was individually counseled as to his expected behavior. The incident that resulted in this termination proceeding occurred May 5, 1994, on the school campus while the Respondent was on duty. Also on duty was Jannine Garribian, a substitute teacher that Respondent had been dating. Immediately before the incident described below, Respondent became involved in a loud argument with another male security monitor over whether this other man had had intimate relations with Ms. Garribian. Following this argument with the other security monitor, Respondent went to the drama room where Ms. Garribian was carrying out her assigned duties. In the presence of students, Respondent physically grabbed Ms. Garribian, shook her, and made loud accusations about her and the other security monitor. He attempted to drag her from the room so he could talk to her. She struggled with him. He grabbed her neck and pushed her against the wall. They then left the room for a short period of time. When they returned, Respondent told a student that Ms. Garribian was a slut and a whore. He called her a devil and said that she was a cold, evil person. When Respondent left he took Ms. Garribian's car keys with him. Ms. Garribian and the students who witnessed this incident were very upset. Carroll Williams, an assistant principal at the school, retrieved Ms. Garribian's car keys from Respondent. Respondent was thereafter ressigned to the regional office pending an investigation. Thereafter, upon recommendation of the school principal, the School Board suspended Respondent's employment without pay and intiated these termination proceedings. Respondent testified at the formal hearing that he did not want to be reinstated to his job with the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school security monitor. DONE AND ENTERED this 16th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 16th day of June, 1995. COPIES FURNISHED: Gerald A. Williams, Esquire Mack, Williams, Haygood & McLean, P.A. 1450 Northeast Second Avenue Suite 562 Miami, Florida 33132 Mr. Carlos Izquierdo 560 West 79th Street Hialeah, Florida 33014 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Did Respondent, Liudmila Parker, commit misconduct in office, willful neglect of duty and gross insubordination in violation of section 1012.33(1)(a), Florida Statutes (2011),1/ as well as engage in conduct unbecoming a public employee? Did Ms. Parker violate the Principles of Professional Conduct for the Education Profession and Orange County School Board Management Directive B-12? What discipline, if any, should Petitioner, Orange County School Board (Board), impose on Ms. Parker?
Findings Of Fact Stipulated Facts Admitted by Both Parties2/ The Board employed Ms. Parker as a classroom teacher. Ms. Parker held a Professional Service Contract with the Board. Ms. Parker received a written reprimand on May 3, 2010, for verbal intimidation of students and interfering in an investigation. On November 19, 2010, Ms. Parker received a written reprimand for embarrassing students. On November 29, 2010, Ms. Parker received a 5 day suspension without pay for confronting a student regarding a complaint the student and his parent made about Ms. Parker. From February 9, 2011, through the end of the 2010-2011 school year, Ms. Parker was on relief of duty status without pay. Background Facts Ms. Parker taught ninth-grade English for Speakers of Other Languages (ESOL) at Dr. Phillips High School in Orange County, Florida, during the 2011-2012 school year. Ms. Parker has been teaching for 34 years. She started teaching in Lithuania where she taught for 27 years. In Lithuania she also taught ESOL. Ms. Parker majored in ESOL and has taught it all her life. Assistant Principal of Instruction Dr. Suzanne Knight was Ms. Parker's direct supervisor. When Ms. Parker began work at Dr. Phillips, she was given a copy of the Dr. Phillips High School Faculty and Staff Handbook. She also had access to an electronic copy of the handbook. The handbook included a copy of the Principles of Professional Conduct of the Education Profession in Florida. The handbook also included a copy of Orange County Management Directive B-12, Code of Civility. Ms. Parker read and understood the handbook. Ms. Parker read and understood the Principles of Professional Conduct of the Education Profession in Florida. Ms. Parker read and understood the Code of Civility. The handbook described and emphasized how to use common sense and professional judgment to avoid complications resulting from conduct that violates the Code of Ethics. The handbook included these admonitions: "All co-workers and employees of the district are to be treated with dignity, respect and courtesy at all times." "Use common sense and good judgment. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted." "Avoid putting yourself in a position where you have to defend, explain or justify your behavior or actions." December 8, 2011, Email Dr. Phillips High School Principal Eugene Trochinski observed Ms. Parker's classroom teaching on November 17, 2011. Dr. Knight observed Ms. Parker's classroom teaching on December 5, 2011. Mr. Trochinski and Dr. Knight gave Ms. Parker written comments after observing her performance. On December 8, 2011, in an email to Mr. Trochinski and Dr. Knight, sent at 3:52 a.m., Ms. Parker stated that she had "several questions to ask." The tone and the text of the email were confrontational and belligerent. Each of Ms. Parker's "questions" was in bold face font, something Ms. Parker does to demonstrate her indignation. Some of Ms. Parker's supervisors' observations and her "questions" follow: Observation--"Student in back of room working on Rosetta Stone but not engaged in daily lesson." "Question" "Do you think they should work with the whole group without understanding anything?" Do you think it is better for them???" Observation--"How do you celebrate success in the lesson" There was no evidence of this between teacher and students during my observation." "Question": "Do you want me to interrupt the test and start celebrating success because you came in for observation???" Observation--[Although the specific observation was not reproduced, it was plainly about the students not appearing to be engaged and the lesson being difficult to focus on.] "Question(s)"--"My students demonstrated good behavior and they were listening attentively. Your comments 'Students did not appear to be engaged in the lesson' and 'It was hard to focus on the lesson due to not understanding the starting point' do not make sense at all. Hard to focus for who? For you??? May be. My students were focused!!! Once again,Dr. Knight was in class during Benchmark test results analysis. Her comments show that she does not like to see that students are focused and attentive." Ms. Parker follows her "questions" with: "To sum up, I evaluate the above-mentioned comments of administrators as one more evidence of a biased attitude towards me at school; it is apparent nagging, nothing else." The email ends with a demand to compare and contrast the teacher training at Dr. Phillips with teacher training at Hunter's Creek Middle School and Evans High School. The last words of the email are: "Thank you for your time spent on reading this email. I am looking forward to getting your responses to my questions ASAP." Ms. Parker's explanation for her charges of bias was only that she was a good teacher and, therefore, Dr. Knight must be picking on her. Section 1012.34(3)(c) and Article X, Section (B)(2) of the Contract between the School Board of Orange County and the Orange County Classroom Teachers Association impose a duty on Dr. Knight and Mr. Trochinski to evaluate the performance of teachers under their supervision, including Ms. Parker. This observation and assessment is not "nagging" or "bias." Ms. Parker's December 8, 2011, email about their observations was discourteous, disrespectful, uncooperative, and a display of temper. It interfered with her ability to perform her duties and the ability of Dr. Knight and Mr. Trochinski to effectively perform their duties. Ms. Parker's email also demonstrates a refusal to take responsibility for her own actions and statements. Ms. Parker's testimony about a later conversation with Ms. Knight affirmed the hostility to criticism and suggestions for improvement recorded in her email. One example is her lengthy answer, at page 430, line 16 of the Transcript, to the question "How long would she [Dr. Knight] come in to your class?" Ms. Parker's answer included this statement, with emphasis supplied: So--and then when she said that it doesn't coincide, I asked, Okay, Dr. Knight, for example you were in my class on December 5th, and you saw--and she wrote down, she had in her notes--that we were going to read and work with fluency based on the story The Birds. And she said, yes. I said, Then why do you say that my lesson plans do not coincide with what I was teaching? She said, Hum, I came in at the beginning and then I don't know what you were teaching. I said, Do you think that I wrote this agenda for the president or somebody else? I wrote for the students. I cannot just write the words and do something else. I don't know. It seems to me there is common sense here. Yeah. So she was just arguing. And her statements, I don't know. This statement was a display of temper, discourteous, disrespectful, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. Because of the December 8, 2011, email, Dr. Knight held a conference with Ms. Parker on December 9, 2011, about the email. Dr. Knight explained what was wrong with the email. She also advised Ms. Parker of the importance of being careful when writing emails because of the risks that a writer may not be as polite as they would be in a personal conversation and the risk that emails may be written and sent when emotions are running high. Ms. Parker reiterated her claims that all criticisms were due to bias. Ms. Parker interrupted Dr. Knight and said "Let's have a dialogue not a monologue." During the meeting of December 8, 2012, Ms. Parker did not acknowledge any validity to any of the concerns raised. She did, however, complain about training and lack of support. During this meeting, Ms. Parker communicated in person as she had in the email. She again demonstrated an inability to accept criticism and responsibility for her own actions. She was again discourteous, disrespectful, and uncooperative and displayed her temper. Ms. Parker's behavior interfered with her ability to perform her duties and the ability of Dr. Knight to perform her duties. Ms. Parker's approach was the same during her testimony. She testified that she had a right to tell an administrator to stop talking and let her speak. Ms. Parker impatiently described the December 8 meeting as useless. In her words starting at page 556, line 17: Yes, I can [tell an administrator that she should stop talking]. Because she was starting to say again and again, and I have no time to sit the whole planning period without any production, without any use, because my planning period I'd rather spend with students. By the way, at that meeting, I wanted to stand up and leave her office, because she didn't want to listen to me. She was only talking, talking, talking. For monologue, she could send me an e-mail. If it was a dialogue--meeting is meant for dialogue, for exchanging ideas, for talking, to discussing [sic] things, but she was just talking and talking. That's why I said, Let us have dialogue, not monologue, because she was speaking 15 minutes. Later in her testimony, Ms. Parker dismisses Dr. Knight's efforts to explain what Ms. Parker had done wrong and suggest improvements this way: "She brought me there to discuss things. Instead of discussion, she began to say boring things, repeating." Ms. Parker's testimony reflected the confrontational and belligerent approach manifested in her emails and conversations during her employment. She repeatedly expressed her view of her superiority as a teacher and her view that all criticisms were unfounded and unfair. She never acknowledged even a possibility that any of her actions or communications were improper. "Elements of Literature" Communications On January 5, 2012, Ms. Parker lunched with fellow teacher Brandi Boone and two other teachers. During lunch, Ms. Parker said that she did not use the "Elements of Literature" curriculum book and had not used it since the beginning of the year, because it was "too difficult" for her students. On January 11, 2012, Dr. Knight conducted an ESOL meeting to address aligning the ESOL curriculum with the general English curriculum. Having both general and ESOL students use the "Elements of Literature" curriculum was part of the school's required teaching strategy. During the meeting, Ms. Parker told Dr. Knight that she used the "Elements of Literature" curriculum and that she loved it. On January 12, 2012, Ms. Boone approached Dr. Knight and told Dr. Knight about Ms. Parker's statement during the January 5, 2012, lunch meeting that she was not using "Elements of Literature" because it was too difficult for her students. On January 17, 2012, Dr. Knight called Ms. Parker in to her office. Assistant Principal Alisa Dorsett was present. During the meeting Dr. Knight asked Ms. Parker if she used "Elements of Literature." She asked because of her observations of Ms. Parker's classroom teaching and Ms. Boone's statements. Ms. Parker said that she was. Because of what she had observed and what Ms. Boone had reported, Dr. Knight questioned the accuracy of this. She told Ms. Parker she thought that Ms. Parker was "being less than honest." This was a fair observation based on the information known to Dr. Knight. During the meeting, Ms. Parker repeatedly got up and tried to go behind Dr. Knight's desk to show her documents. Dr. Knight repeatedly had to ask Ms. Parker to sit down. At the end of the meeting, Ms. Parker told Dr. Knight that "If you want to go to court, we can go to court." Ms. Parker testified that she said: "Shall we go to court? We'll go to court." Regardless of the exact wording, the gist of the comment is the same. The comment, like Ms. Parker's conduct in the meeting, was a combative, discourteous, threatening, and uncooperative response to Dr. Knight's attempt to address a professional issue. The comment and Ms. Parker's behavior in the meeting also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. It is not the fact that Ms. Parker wanted to exercise her legal rights that is improper. It is the way she expressed it that is improper. Ms. Parker's repeated attempts to move behind Dr. Knight's desk were also combative, discourteous, threatening, and uncooperative. Emails of January 17 and 18 After the January 17 meeting, Ms. Parker wrote emails to Dr. Knight and Ms. Dorsett. In her January 17 email to Ms. Dorsett, Ms. Parker asked Ms. Dorsett to write in her notes that Dr. Knight told Ms. Parker that she was a dishonest person and that Ms. Parker had lied during the ESOL meeting. Ms. Dorsett replied that she would write that Ms. Parker had asked to have that statement included in her notes. But Ms. Dorsett testified that she did not agree that the requested additions were accurate. Ms. Parker sent another email to Dr. Knight on January 18, 2012, in which she said that Ms. Dorsett had not responded to the January 17 email. Ms. Parker then asked in the email, "So who is dishonest then?" The statement is discourteous, disrespectful, a display of temper, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight and Ms. Dorsett to perform their duties. Communications with Ms. Boone On Sunday, January 22, 2012, at 12:49 a.m., Ms. Parker sent Ms. Boone an email. In it, Ms. Parker accused Ms. Boone of telling Dr. Knight that she grouped her students by ethnicities. Ms. Parker, who suspected but had not confirmed that Ms. Boone told Dr. Knight that she said she did not use "Elements of Literature," went on to discuss her usage of "Elements of Literature." The email concluded: "My colleagues who create slanders will be really upset when investigation starts. According to The Principles of Professional Conduct, 'the educator shall maintain honesty in all professional dealings.' You have to be honest and tell the truth. You must take responsibility for your words and actions." The statement was threatening. Ms. Parker intended to convey to Ms. Boone that she would sue her for slander. Exercising your legal rights, including in a work place context, is not inherently improper. But Ms. Parker's threat of investigations and slander suits reduced her ability to effectively perform her duties, reduced Ms. Boone's ability to effectively perform her duties, harassed Ms. Boone, created a hostile and intimidating environment, and was bullying. Ms. Boone replied in an email of January 22, 2012, at 8:24 p.m. She denied accusing Ms. Parker of grouping students by ethnicity. She acknowledged providing information to Dr. Knight and that she was appalled when Ms. Parker told Dr. Knight she used and loved "Elements of Literature." In a second email a few minutes later, Ms. Boone said that she wanted Dr. Knight present for any further conversations between her and Ms. Parker about students or Ms. Parker's claims. Ms. Parker responded with a lengthy email that included the following series of sarcastic and combative statements. You showed yourself a very disrespectful person accusing me, a veteran teacher, who is 2 times older than you, who has worked 34 years at school. I also noticed that you have hearing problems. Am I right? Maybe you misunderstood something and jumped to conclusions? Besides, I love humor. Boring people do not understand it as a rule. And guess what? I have a lot of students' works done during the first semester based on "Elements of Literature", and I can show them to everybody at any time. I showed them to Dr. Knight. Why should I tell [sic] that I did not work with EL??? You saw my students' projects too. In your class there are no students' works at all! To sum up, you violated the Principles of Professional Conduct: Obligation to the Profession of Education (d) and (e) because you created offensive environment and made a malicious statement about your colleague (me). Now you will have to take responsibility for your words. After your actions I have no desire to communicate with you at all, but because of working conditions I will have to have "that pleasure", only in the presence of Rita or administrator. Ms. Parker's statements in these email communications harassed Ms. Boone and created a hostile, intimidating, and oppressive environment. The statements were discourteous and interfered with the ability of Ms. Parker and Ms. Boone to perform their duties. Midpoint Evaluation Dr. Knight met with Ms. Parker on January 19, 2012, to discuss her midpoint evaluation. Assistant Principal Bridget Bresk attended as a witness. During the meeting, Dr. Knight gave Ms. Parker a direct and reasonable order to acknowledge that she had received the written mid-point evaluation. Ms. Parker had not acknowledged receipt as requested when she was provided the evaluation. The acknowledgement form only asked the teacher to acknowledge receiving the evaluation. It did not state or imply that the teacher agreed with the evaluation. Ms. Parker refused. Ms. Parker said that she would not acknowledge receipt of the evaluation because she did not agree with it. Dr. Knight explained that the acknowledgement simply stated that Ms. Parker had received it and did not say that Ms. Parker agreed with the evaluation. Ms. Parker still refused. She told Dr. Knight that "acknowledge" means to agree and that Dr. Knight "should look it up yourself." Ms. Parker intentionally refused to obey a reasonable direct order given by her direct supervisor, Dr. Knight. Ms. Parker was also discourteous and uncooperative. Her conduct impaired Dr. Knight's ability to perform her duties. During the meeting, when they discussed what Ms. Parker needed to improve, Ms. Parker told Dr. Knight "sorry for breathing." She sought to justify the comment by saying it was an "American expression." Ms. Parker also told Dr. Knight her comments after the classroom observation about celebrating student success were "ridiculous." At the meeting's end, Ms. Parker told Dr. Knight one of the following: "I have people who will take care of me and I have people who will take care of you"; "There are people who will take care of me and take care of you."; or "There are people who will take care of me and you." There are no material differences between the three statements. Any version is a threatening and bullying statement. Ms. Parker's argument that she was only stating the obvious, that she could file a grievance, is not persuasive. She made no reference to a grievance in the meeting. Her words plainly convey a darker impression than "we may have to agree to disagree and resolve our disagreements legally" or "I will file a grievance about this." The preceding comments were threatening, bullying, discourteous, disrespectful, and uncooperative. Also, throughout the meeting, Ms. Parker's conduct impaired the ability of Dr. Knight and Ms. Parker to perform their duties. After the meeting, Ms. Parker sent Dr. Knight two emails. The first, sent at 5:20 p.m., included the following two sarcastic statements: I appreciate your close attention to me lately. I wish you started to analyze planning problems since the beginning of the school year, but better late than never. Well, I think you are very brave. I wonder if you are aware of the fact that Code of Civility refers to all OCPS employees, not only teachers. The second, sent 30 minutes later, included the two statements that follow. Referring to Dr. Knight's concerns about whether Ms. Parker was using the "Elements of Literature," Ms. Parker said: It proves again and again your hostile biased attitude. Earlier or later, we all have to pay for what we have done. . . . (Unknown author). Ms. Parker's original explanation that she was paraphrasing a biblical passage and her later explanation that she was quoting Oscar Wilde are neither persuasive nor material. The source of the quote does not alter the fact that the statement and the entire email are discourteous, disrespectful, bullying, and uncooperative. Grievance Meeting On January 20, 2012, Ms. Parker submitted a grievance to the Board's employee relations office. Carianne Reggio, the Equal Employment Opportunity Officer and Equity Officer for the Orange County Schools, investigated the grievance. Ms. Reggio met with Ms. Parker on March 20, 2012, to advise her of the result of the investigation. During the meeting Ms. Parker displayed, as she had in her meetings with Dr. Knight, what the union representative described as confidence "that borders on what we might perceive as arrogance." During the meeting, Ms. Parker gave no indication that she acknowledged that anything she had said or done during the communications and meetings from December 2011 forward was inappropriate or improper. She maintained that same position during her testimony. During the three-hour meeting, Ms. Reggio reviewed her findings of no violations with Ms. Parker and considered Ms. Parker's reactions and complaints. Ms. Parker was very upset. While Ms. Reggio was walking Ms. Parker to the elevator, Ms. Parker said she could see why teachers resort to extreme measures and shoot up school systems. This was a reference to a recent murder/suicide in Jacksonville, Florida, where a teacher shot the headmistress of his school and then killed himself. Ms. Parker did not accompany this statement with any gestures, a display of a weapon, or any more specific statement. The statement was crass, disquieting, and inappropriate. But it was not a threat. On March 6, 2012, the Superintendent of Schools recommended termination of Ms. Parker's contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order finding that there is just cause to terminate Ms. Parker's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 23rd day of October, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of October, 2012.
The Issue Whether Respondent should be dismissed or otherwise disciplined for the reasons set forth in the Miami-Dade County School Board's Amended Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board, Respondent, and his Supervisors The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Gertrude K. Edlelman/Sabal Palm Elementary School (Sabal Palm), Miami Norland Senior High School (Norland), and North Miami Senior High School (North Miami). The principals of these schools have ultimate supervisory authority over all School Board employees assigned to their schools, including custodial employees. Raul Gutierrez is now, and has been for the past three years, the principal of Sabal Palm. Mr. Gutierrez succeeded Gertrude Edelman, after whom the school is now named. Mr. Gutierrez had served as an assistant principal at the school under Ms. Edelman for five years before he became the school's principal. Selma McKeller is now, and has been for the past 11 years, the head custodian at Sabal Palm, having supervisory authority over all other members of the school's custodial staff. Willie Turner is now, and has been for the past four years, the principal of Norland. Gladys Hudson was an assistant principal at Norland during the 2002-2003 school year. Among her responsibilities was to oversee the school's entire custodial staff, including the head and lead custodians. Respondent has been employed by the School Board since March of 1989. Respondent was initially hired as a custodian and assigned to Sabal Palm. In August 1998, while still assigned to Sabal Palm, Respondent was promoted to his present position, lead custodian, which is a supervisory position. Respondent remained at Sabal Palm until August 2002, when he was placed on "alternate assignment" at Norland, where he worked under the direct supervision of the school's lead custodian, Leaford Harris. In December 2002, Respondent was placed on "alternate assignment" at North Miami. The Collective Bargaining Agreement As a lead custodian employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II of the AFSCME Contract is the contract's "[r]ecognition" article. Section 3 of Article II provides as follows: The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; and (3) the designation of the organizational structure of the MDCPS and the lines of administrative authority of MDCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; I. Contract out for goods or services; and J. Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Definitions are set forth in Article V of the AFSCME Contract. They include the following: * * * Section 17. Working Hours-- Those specified hours when employees are expected to be present and performing assigned duties. Section 18. Workday-- The total number of hours an employee is expected to be present and performing assigned duties. * * * Section 27. Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. Section 4A of Article IX of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows: Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary period, employees may be terminated without recourse under this Contract. If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated. Section 13 of Article IX of the AFSCME Contract discusses the School Board's Employee Assistance Program. It provides as follows: AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction." Section 1 of Article XI is entitled, "Due Process," and it provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee[']s record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); Letter of reprimand; Suspension/demotion; and Dismissal. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (i.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. The employee shall have the right to Union representation in Conferences-for-the- Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the Record. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled, "Dismissal, Suspension, Reduction-in-Grade," and it provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract the Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled, "Cause for Suspension," and it provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI describes the "[t]ypes of [s]eparation." It provides in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of four [sic] distinct types of separation. Voluntary-- . . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling ten or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- . . . . AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause. Layoff-- . . . . Section 6 of Article XI addresses the subject of "[p]ersonnel [f]iles," and it provides as follows: A. Pursuant to Florida Statutes, Chapter 231.291 Personnel Files - Public school system employee personnel files shall be maintained according to the following provisions: Except for materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal under laws of this state, no derogatory materials relating to an employee's conduct, service, character, or personality shall be placed in the personnel file of such employee. Materials relating to work performance, discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment. No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming aware of the facts reflected in the materials. The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure. There shall be no statements placed in an employee's personnel file unless the employee has been given a copy. Upon request, the employee, or any person designated in writing by the employee, shall be permitted to examine the personnel file. The employee shall be permitted, conveniently, to reproduce any materials in the file, at a cost no greater tha[n] five cents per page. Such request should be made to the custodian of a personnel file, who shall permit examination of the records at reasonable times, under reasonable conditions, and under supervision of the custodian of the record. The custodian of the record shall maintain a record in the file of those persons reviewing the file each time it is reviewed. "Personnel [i]nvestigations" are the subject of Section 7 of Article XI, which provides as follows: The Board shall take steps to ascertain the identity of the complainant, prior to authorization of an investigation. No investigation of an allegation against an employee shall be made on the basis of an anonymous complaint. In the event of allegations and/or complaints being made against any employee, an investigation which may result in information being placed in the employee's personnel file shall not be concluded by the Miami-Dade County Public Schools Police (MDCPSP) or any person prior to the time that the employee receives identification of the complainant and the nature of the complaint. In all Board investigations which may lead to suspension or dismissal of an employee, only the Superintendent or his/her designee may authorize such an investigation. When a formal investigation has been authorized, all personnel involved will be advised by the MDCPSP investigator of their legal rights, and the procedures available to them for representation. Information that is not substantiated will not be used for disciplinary action against the employee. In all Board investigations resulting in discipline, the employee shall be provided with a copy of the report. With the permission of the employee, the Union shall also receive a copy. When investigatory reports are provided, said reports shall be transmitted within a timeframe consistent and harmonious with basic due process. In all cases in which the preliminary investigation is concluded, with the finding that there is no probable cause to proceed further and no disciplinary action taken or charges filed, a statement to that effect signed by the responsible investigation official shall be attached to the complaint and the complaint and all such materials shall be open, thereafter, to inspection. Where allegations have not been proven against an employee, no reprisal or punitive action shall be taken against an employee. Pertinent School Board Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including School Board Rules 6Gx13-4-1.08 and 6Gx13-4A-1.21. School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools employees have a right to work in a safe environment. Violence or the threat of violence by or against students and employees will not be tolerated. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. September 1989 Investigation In September of 1989, Respondent was the subject of an investigation conducted by what was then referred to as the School Board's Special Investigative Unit (S.I.U.). The investigation culminated in an investigative report being issued on September 27, 1989 (in S.I.U. Case No. T1684). The report was written by Detective Sergeant Miriam McNeil-Green and read as follows: Allegation: On Wednesday, 09-13-89, Steven S. Newbold was arrested at Northwest 191 Street and 37 Avenue at 11:50 p.m. for driving with a suspended license, citation #55136-IR. The above allegation was reported to central S.I.U. office on September 14, 1989, by Sergeant Rudolf, Metro-Dade Police shift commander. Mr. Henry Hortsmann, Director, Office of Professional Standards, authorized a records check on September 14, 1989. I [Detective Sergeant McNeil-Green] responded to Metro-Dade headquarters building on September 20, 1989, in reference to the above offense. However, the traffic offense was not on file. I went to the Metro-Dade justice building, traffic division and was given a copy of the printout for the arrest of Steven Spencer Newbold. A copy of the printout is attached to this report. The arraignment date will be set. While at Metro-Dade headquarters building it was discovered that Steven Newbold has a felony and misdemeanor past as follows: On 02-24-88, Steven Newbold was arrested at Northwest 22 Avenue and 90 Street, Miami, Fl. 33142, for (1) No valid drivers license; (2) Driving with license suspended; (3) Grand theft auto; (4) Possession of marijuana (11 grams). On March 16, 1988, Newbold pled guilty to possession of marijuana. Adjudication was withheld and Newbold was placed on probation for one year. On March 16, 1988, Newbold pled nolo contendere to one count of grand theft auto and was placed on one year probation. Certified copies are attached. On May 11, 1988, Steven S. Newbold was arrested at 1461 N. W. 60 Street, apt. #5, Miami, Fl. 33141 for trespassing of structure. On July 14, 1988, Newbold pled guilty and was fined $78.75. Certified copies are attached. Vault information: Steven Spencer Newbold was hired on 03-22-89 as a custodian at Sabal Palm Elementary. On his application for employment, Mr. Newbold stated he had never been arrested. Conclusion: The allegation against Steven S. Newbold is substantiated, [in that] he was arrested on September 13, 1989 for a traffic offense. He also falsified his employment application by stating he had not been arrested. On October 1, 1990, Henry Horstmann, the director in the School Board's Office of Professional Standards referred to in the investigative report, authored a memorandum concerning the report for placement in Respondent's personnel file. The memorandum read as follows: SUBJECT: DISPOSITION OF INVESTIGATIVE
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the AFSCME Contract. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 13th day of August, 2004.
The Issue Whether there is just cause to terminate Mr. Altheim's employment.
Findings Of Fact The School Board is the entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Mr. Altheim has been employed with the Miami-Dade County Public Schools for 15 years. During the 1999-2000 school year, Mr. Altheim was a teacher at North Miami Middle School. He was involved in a conference-for-the-record; he was directed to follow all School Board rules and to conduct himself within the community in a proper manner. During the 2002-2003 school year, Mr. Altheim was still working at North Miami Middle School. He was involved in a conference-for-the-record, where he was again directed to adhere to all Miami-Dade County School Board rules and regulations. He was also directed to cease and desist from inappropriate contact with the students, and to conduct himself in a manner that would reflect credit upon himself and the Miami-Dade County Public Schools. Ten years later, during the 2012-2013 school year, Mr. Altheim was employed as a civics teacher for John F. Kennedy Middle School. Karen Robinson was the Principal during this school year. On a school day in December 2012, Mr. Altheim took his class to the cafeteria for lunch. While in the cafeteria, he noticed three girls who were out of place; because he knew which students should be in the cafeteria during that time period, he concluded that the three girls should be elsewhere. Mr. Altheim took one student to Mr. Sanon's class, and informed Mr. Sanon that the student was attempting to skip his class. The other two he took to see the Assistant Principal, who was on the phone when the group arrived at his office. Mr. Altheim left the students in the Assistant Principal's office, shortly thereafter returning to check on the matter. The students were still waiting, and the Assistant Principal was still on the phone. Mr. Altheim told the Assistant Principal that the girls were "skipping" and started to walk away. He overheard one of the girls, N.S., tell the other girl that Mr. Altheim was a rapist, and that he touched people. Mr. Altheim told Ms. Robinson that N.S. had called him a rapist, and Ms. Robinson directed Mr. Altheim to write a referral for N.S., for using inappropriate language with a teacher. N.S. was described as a challenging student by both Ms. Robinson and Mr. Altheim. Prior to this incident, Mr. Altheim had written referrals for N.S. numerous times for behavioral problems. Ms. Robinson met with N.S., and asked her why she used the term "rapist" to refer to Mr. Altheim. N.S. accused Mr. Altheim of rubbing girls' necks and shoulders, including hers, and gave Ms. Robinson the names of three other girls who could corroborate her story. Ms. Robinson spoke to approximately five students, including the three girls that had been identified by N.S. Some of the girls accused Mr. Altheim of massaging their necks and shoulders, and one accused him of brushing her bangs away. According to Ms. Robinson, all of them reported feeling uncomfortable with the physical contact. None of these students' written statements or oral statements were entered into evidence. Instead, 13 other students testified by deposition. Twelve of them never saw Mr. Altheim touch any student inappropriately. Most of them saw Mr. Altheim pat students on the back or on the shoulder, or shake a student's hand, when congratulating a student for a job well done. They consistently testified that he did so in a congratulatory manner, but never in an inappropriate manner. One student, D.P., claimed that he had seen Mr. Altheim wrap his arm around a girl's waist, but added that no one else saw this occur, and admitted to being friends with N.S. and the other accusers. D.P.'s testimony was not corroborated by any other student's testimony, and is not found credible. Notably absent from the record is any alleged victim statement; not a single student testified that he or she had been inappropriately touched by Mr. Altheim. Mr. Altheim credibly testified that he never inappropriately touched any student, and that he never massaged student's necks or shoulders. He may have patted students on the shoulder or back, or shaken students' hands when congratulating them, but there was nothing inappropriate about the physical contact. The greater weight of the evidence establishes that Mr. Altheim is not guilty of misconduct in office, gross insubordination, or of a violation of any School Board policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade School Board enter a final order dismissing the charges against Mr. Altheim and reinstating him with full back pay and benefits. DONE AND ENTERED this 22nd day of November, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 22nd day of November, 2013. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Heather L. Ward, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto Carvalho, Superintendant Miami-Dade County Public Schools Suite 912 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether there is just cause for Palm Beach County School Board to suspend Deborah Stark for 10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner. At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade. One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading. During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct. On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under co-workers' names without permission. One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively. On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's 2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered. Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center. Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment." On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so. In December 2015, Stark still had student work posted from August and her classroom was not up to date. On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved. By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date. On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015." On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year. On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited: poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination. Seal also instructed Stark in the memo: Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016. Respondent failed to follow the leave directive of the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017, Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day. Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay. Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer. Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not able to provide the students' new teachers with accurate data for placement. Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017. Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated. On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time, Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement. Respondent's absences from work also caused her to miss valuable School Board training and support. Ultimate Findings of Fact Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors. Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records. Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment. Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule. By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a 10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies: Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II, Section U, Lesson Plans Failure to Protect the Learning Environment pursuant to School Board Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: Finding Deborah Stark in violation of all six violations in the Administrative Complaint; and Upholding Deborah Stark's 10-day suspension without pay for just cause. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 25th day of July, 2018.
The Issue Whether Petitioner, Palm Beach County School Board ("Petitioner" or "School Board") proved by clear and convincing evidence that it has just cause to discipline Respondent, Jeffrey Schector, and, if so, what is the appropriate penalty.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: The School Board is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all times relevant to this case, Respondent was employed as a math teacher at Eagles Landing Middle School in the School District of Palm Beach County, Florida. A Collective Bargaining Agreement existed, which governed relations between the School Board and certain employees, including Respondent. Resp. Ex. 7. Article II, Section M of the Collective Bargaining Agreement, Discipline of Employees (Progressive Discipline), provided, in relevant part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this agreement. Further, an employee shall be provided with a written notice of wrong doing, setting forth the specific charges against that employee prior to taking any action. * * * 5. Only previous disciplinary actions which are a part of the employee's personnel file which are a matter of record as provided in paragraph 7 below may be cited. * * * 7. Except in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation * * * Written Reprimand * * * Suspension Without Pay * * * Dismissal . . . . Respondent acknowledged receipt of the School Board's Code of Ethics on October 13, 2010. See Pet. Ex. 1. While teaching at Eagles Landing Middle School, Respondent received a Memorandum of Specific Incident dated January 29, 2013, for a lack of professionalism displayed during interactions with the mathematics team. Pet. Ex. 2. Written Reprimand on December 2, 2013 Respondent was disciplined and issued a written reprimand on December 2, 2013, for violations of School Board policies regarding Commitment to Student Principles, Code of Ethics, and state statutes regarding the education professional. He had been found to have engaged in inappropriate horseplay with a student which ended with the student falling to the floor. Additionally, Respondent tossed a student's crutches from his classroom and referred to the student as a "cripple." In the reprimand, Respondent was advised to cease and desist from engaging in the same or similar conduct in the future, and, if he did not, he would be subject to further discipline up to and including termination. Pet. Ex. 7. The evidence during the hearing reflected that Respondent had received several recent performance evaluations during his tenure with the School Board. For the 2013 school year, his performance evaluation was "effective." For an evaluation submitted April 17, 2014, he received "highly effective" marks in instructional practice. For the 2015 school year, he received an annual evaluation of "highly effective" for instructional practice, "effective" for student growth, "highly effective" for deliberate practice, and "highly effective" for evaluation level. Resp. Ex. 4. Classroom Incident on May 4, 2015 Respondent was teaching math to eighth-grade students in a portable building at Eagles Landing Middle School. Near the end of the lesson, Respondent became aware that two male students were engaged in horseplay with another student, J.G.1/ One of the two male students grabbed a water bottle from J.G. intent on annoying and/or harassing J.G. This horseplay caused the water bottle top to come off, resulting in water spewing on several of the boys and also dousing several school documents Respondent had on his desk. Upon seeing the mess that was created, Respondent stood up and screamed "I am fucking tired of this shit and I don't appreciate having my stuff destroyed." The comment was not directed at anyone in particular. Respondent then took the water bottle, walked to the back door of the classroom, and threw it outside. He then went back to his desk and, as he put it, "was stewing about what had happened." Sometime later, just before the end of the class period, Respondent noticed that one of the males had dropped his cell phone on the floor by his desk. Respondent walked over, bent down and picked up the phone, and put it in his pocket. Apparently, the student was not aware that Respondent had picked up his phone. Respondent admitted that he had taken the cell phone for the purpose of teaching the student a lesson and that he intended to hold on to it until dismissal. As he put it, "it would be nice to watch G.P. [the student who owned the phone] squirm for a little bit." When the dismissal bell rang, the student started looking frantically for his cell phone. At that point, J.G. went over to G.P. and told him that Respondent had his phone. This made Respondent angry. He stated that he felt that J.G. "had sabotaged his plans." Respondent raised his voice and began yelling at J.G. claiming that he had "sold him out" and why could he do such "an idiotic thing." There was conflicting evidence concerning whether or not any profanity was used by Respondent.2/ Respondent then followed J.G. outside the classroom and continued to berate him. Respondent used some other choice words against J.G. including calling him "stupid" and "idiotic." Respondent admitted that the May 4, 2015, incident was not the first time he used profanity in the classroom and that it was not the first time he ever become angry, or made any harsh comments to a student. J.G. testified by way of deposition taken on February 1, 2016. He claimed that when the water bottle incident occurred, Respondent was yelling in general.3/ J.G. testified that the conduct of Respondent shocked him and made him nervous because he had never seen a teacher react like that to anything. When J.G. told the other student that Respondent had his phone, Respondent started screaming at him and had a "melt down," as he described it. J.G.'s recollection of the event was fairly detailed and consistent. He said that Respondent called him "stupid," "retarded," and an "idiot." He cursed at J.G. using the F_ _ _ word, the S_ _ _ word, and accused J.G. of being a "F_ _ _ing idiot." When Respondent cursed at him, it made J.G. feel very shocked and embarrassed, particularly in front of the other students. He acknowledged, however, that this was the first time that Respondent ever got in his face and yelled or cursed at him. Notably, J.G. admitted that since the May 4, 2015, incident his academic career has been the same and that he is actually doing better this year, than last year. Also, after the incident on May 4, 2015, J.G. testified that much of the harassment decreased. Apparently, one of the male students involved in the incident received an in-school suspension for the name-calling incident and stayed away from J.G. The other student, as well, was not making fun of him like he had done previously. Several students, including the two male students involved, testified by way of their deposition transcripts. Each recalled the incident on May 4, 2015. The students each had a similar recollection of the basic events. They confirmed that Respondent got very upset, was screaming, and used some curse words and demeaning language. Several of the students acknowledged, in general, that the incident resulted in the classroom antics and horseplay subsiding. Each provided a written statement which was reviewed by the undersigned. Following the incident on May 4, 2015, Respondent was removed from the classroom, but was allowed to return to school on May 11, 2015, to begin teaching again. He taught until the end of that school year-–until approximately June 6, 2015. During the summer of 2015, Respondent received a letter from the principal reappointing him to his teaching position at Eagles Landing Middle School for the 2015-2016 school year. Approximately 11 days after the new school year began, Respondent was requested to attend a pre-disciplinary hearing relating to the May 4, 2015, incident. After the pre- disciplinary meeting, he was allowed to return to his classroom until October 9, 2015. In early October 2015, Respondent was directed to attend several Employee Assistance Program meetings. He attended four different sessions through November 4, 2015, when he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board discipline Respondent with an unpaid suspension covering the period of time Respondent has been suspended from his teaching duties, but immediately reinstate him to his teaching duties. No back pay is recommended. The undersigned also recommends that Respondent be required to attend and successfully complete an anger management class after reinstatement. DONE AND ENTERED this 13th day of April, 2016, 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 13th day of April, 2016.
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. 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 19th day of February, 1996.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
