The Issue Petitioner Florida Education Association (FEA) filed a Petition to require Respondent Department of Education (DOE) to initiate rule-making and has challenged the validity of two documents issued by DOE, alleging that they are unpromulgated rules. The challenged documents are a January 22, 2001, memorandum to District Management Information System Coordinators and District Assessment Coordinators and a March 23, 2001, memorandum to District School Superintendents, regarding "Responsible Instructor--Reading, Writing, and Mathematics."
Findings Of Fact Petitioner FEA is an employee association representing over 100,000 Florida educators for collective bargaining, representation in administrative and legal proceedings, professional development, and political activity. Its standing to bring this challenge was stipulated. Two DOE memoranda are challenged herein as unpromulgated rules. It was stipulated that the memoranda were, in fact, disseminated to the recipients indicated on them. Their content is not at issue and is recited in Findings of Fact 23-25, infra. Petitioner's witnesses believe that teacher evaluations and compensation ultimately will be tied to student performance. A law is already in place providing for the award of bonuses to "outstanding" teachers, and efforts to implement evaluation of teachers based on student performance are underway in some school districts. Petitioner's witnesses have concluded that the challenged memoranda establish statewide criteria for identifying the "responsible instructor" for teacher (or educator) assessment, credit, and/or monetary rewards, and that the use of the "responsible instructor's" social security numbers will be subject to abuse of confidentiality. Petitioner's witnesses were unaware of rulemaking activities associated with amending Rule 6A-1.0014, Florida Administrative Code, in the year 2000 and were unfamiliar with the Rule itself. The Rule itself has not been challenged in this proceeding. The Commissioner of Education is charged with maintaining an integrated information system for educational management. Section 229.555(2), Florida Statutes. This is called the Comprehensive Management Information System. The system must collect data from school districts to determine student, school, and district performance, and to support management decisions at the departmental, district, and school levels. The Commissioner of Education's responsibilities include providing operational definitions for the proposed system (Section 229.555(2)(a)2., Florida Statutes), determining information and data elements required for management decisions (Section 229.555(2)(a)3., Florida Statutes) and developing standardized terminology and procedures. (Section 229.555(2)(a)4., Florida Statutes). Section 229.57, Florida Statutes, establishes the purpose, scope, and criteria of assessing student performance, and school and district accountability. The State Board of Education is authorized to adopt rules to administer the provisions of both laws. Sections 229.555(3) and 229.57, Florida Statutes. DOE's Bureau of Education, Information, and Accountability Services maintains the database established by Section 229.555, Florida Statutes. DOE has promulgated administrative rules to implement Section 229.555, Florida Statutes, which rules have been officially recognized for this proceeding. There is no DOE rule which, in and of itself, refers to "responsible instructor" or "responsible instructor data element." Those terms also are not specifically used anywhere in the Florida Statutes. Section 229.57(11)(e)1., Florida Statutes, was amended, effective upon becoming law in June 1999 (see Section 7, Session Law 99-398), to read: The statistical system shall use measures of student learning, such as the FCAT, to determine teacher, school and school district statistical distributions, which distributions: Shall be determined using available data from the FCAT, and other data collection as deemed appropriate by the Department of Education, to measure the differences in student prior year achievement against the current year achievement or lack thereof, such that the "effects" of instruction to a student by a teacher, school, and school district may be estimated on a per-student and constant basis. DOE considered that amendment to be a legislative directive to DOE to measure the "effects" of instruction by a teacher, school, and district, using data from the Florida Comprehensive Assessment Test (FCAT) "and other data collection as deemed appropriate by the Department of Education." Upon that basis, DOE set out to determine what method to use to collect the data. After considering various alternatives, DOE selected the "responsible instructor" approach. DOE held workshops and solicited input to determine the appropriate method of implementing the requirements of Section 229.57(11)(e)1., Florida Statutes. Three methodologies were considered: Using existing Management Information System components which were not adequate to meet the new statutory language; doing laborious surveys on the day each FCAT was administered, which surveys would be accurate only for that single day; or using the responsible instructor element. Ultimately, the responsible instructor element was selected by Lavan Dukes and Thomas Fisher after talking to District Management Information System officials and testing officials and key staff members. Lavan Dukes is DOE's Bureau Chief for Education, Information, and Accountability Services. Thomas Fisher is Administrator of DOE's Assessment and Evaluation Section. The "responsible instructor element" was first applicable to the 2000-2001 school year. The "responsible instructor element" was first included within the Comprehensive Management Information System in April 2000, effective July 2000. It provides a four-page form for reporting and the following instructions: Submit only for Survey Period 2 for all students in grades 3-10 to identify teacher primarily responsible for instructing the student in reading, writing end mathematics. Report Social Security Numbers for instructors in each of the categories, reading, writing and mathematics. ELEMENTARY SELF-CONTAINED: Social Security Numbers of teachers of students in elementary self-contained classes may be reported in all three responsible instructor categories. MIDDLE AND HIGH SCHOOL LANGUAGE ARTS: unless a student has separate reading and writing classes, the language arts teacher would be reported for both the reading and writing category. KEY FIELDS: the key fields for this format are item numbers 1, 4, 5, 6, and 7. If a key field needs to be changed, the record must be deleted and resubmitted as an add. (Joint Exhibit 4) As such, the "responsible instructor element" became part of a voluminous publication entitled 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). (Joint Exhibit 3). Rule 6A-1.0014, Florida Administrative Code, prescribes data collection on an annual basis. The Rule was initially adopted in 1987. It has been amended 13 times between December 21, 1987, and October 17, 2000. Among other things, Rule 6A-1.0014, Florida Administrative Code, now incorporates, by reference, 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). The collection of the "responsible instructor element" is contained for the first time in that publication as an automated student reporting format. Rule 6A-1.0014, Florida Administrative Code, cites as its legislative authority only Sections 228.093(3)(d), 229.555(2), 229.565.(3), and 229.781, Florida Statutes, and does not expressly purport to implement Section 229.57, Florida Statutes. Rule 6A-1.09422, pertaining to the creation, administration, and security of the FCAT, and Rule 6A-1.09981, involving implementation of Florida's system of school improvement and accountability do name Section 229.57, Florida Statutes. The evidence further shows that after the data element was included in the Rule, revised in October 2000, DOE staff conducted workshops around the state to explain and clarify changes in DOE's database requirements. Only after receiving input at its instructional workshops did DOE circulate the two memoranda at issue herein. On January 22, 2001, DOE promulgated a memorandum from Lavan Dukes and Thomas Fisher to District Management Information System Coordinators and District Assessment Coordinators throughout Florida. The memorandum's stated subject was "Responsible Instructor Data Element," and it states: Previously, you were given instructions by the Department's Education Information and Accountability Services Bureau relative to a new data element called "Responsible Instructor-Reading, Writing and Mathematics." The inclusion of this data element is related to the Department of Education's efforts to build a value-added accountability system in accordance with Section 229.57, F.S. We have received a number of inquiries concerning how districts should define and collect the requested data. This memorandum is being distributed to assist districts into [sic] submitting accurate and valid information about the "responsible instructor." The intent of the data element is to link each individual student to the person(s) primarily responsible for providing instruction in reading, writing and mathematics. While the concept is clear, in practice there may be more than one instructor identified. [T]he [sic] student at the high school level may be taking two mathematics courses, or the student may not be enrolled at the moment in either an English or mathematics course. This means that decisions about how to define and identify the "responsible instructor" must reside with the district and school staff. We are unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur. We have received a number of specific questions that can be used to illustrate the principles that may be followed, and these are discussed in the attachment to this memorandum. Review of these examples should be of assistance to you in completing the data request. We recognize that there are other situations that will arise that have not been addressed in the attachment. Hopefully you will be able to make your local decisions within the framework established in this memorandum. After you have completed the data collection activities and have had time to think about the process, please send a note to either of us with your suggestions for improvements in the future. Thanks for your assistance. (Emphasis supplied). Attached to the foregoing memorandum was a document entitled "Questions and Answers About the Responsible Instructor Data Element": Q: Should the district inspect the student's course/class schedule to determine who the responsible instructor is? Should this be tied to a particular date? A: Each district must determine whether it will collect the data from original sources through the use of a paper form or if it will analyze existing computer files to extract the information. In either case, the data collection activity is associated with Survey 3. The "responsible instructor" will be either the person currently delivering the instruction or the person who most recently provided the instruction. The latter would be illustrated by a student who took a mathematics course in the fall semester but was not registered in a mathematics course at the time of the Survey 3. Q: In a block schedule school, a student might not currently be enrolled in either an English or mathematics course at the time of Survey 3. He/she may have taken such courses in a previous block. How should the data be returned? See previous question. The task is to identify the teacher most recently delivering instruction to the student in the specified subject area. This may well be a teacher who taught English or mathematics in the previous round of the "block schedule." Q: How should one respond if the student actually is enrolled in two English or math courses at the time of Survey 3? A: The decision must be made at the local level as to whether there is a single person who is primarily responsible for instruction in reading, writing, or mathematics. One way to handle the situation would be for one teacher's name to be entered but to understand that this person's name represents the work of two teachers. This principle could be followed in situations where the student is in a team teaching classroom. If this approach is used, backup information must be retained at the local level to interpret any future data analyses that may be disseminated. Q. If a student is not currently enrolled in a reading, writing or mathematics course how should the data element be defined? It is difficult to imagine a situation in which a student would not be receiving instruction in these areas, but if it happens, the data element should be zero filled. Q: Is the Department requesting one record per student? A: Yes. Q: Can the Department specify what course numbers to use from the MIS data fields? A: No. This is a local decision related to how your data is organized and maintained. Q: What course numbers would be used for reporting "reading and writing?" A: In most instances the student will be receiving instruction in reading and writing through the English courses. At the elementary level, either a self-contained classroom or a team teaching situation would be encountered. The former would require identification of a single teacher whereas the latter would require a solution as described above in question number 3. A high school student could be taking English as well as a special course in Reading; however most students do not take a course titled "Reading." If a student is enrolled in two such courses, the decision of how to code it should be made at the local level. Q: Should the district code the courses in which the student is enrolled at the time of Survey 3 or courses the student may have taken earlier in the school year? A: The records should reflect the current courses except as discuss [sic] question number 1 above. Q: How would the district code a student who is taking a course in the Adult Evening School to make up the credit in the regular school program? A: No courses taken in the Adult Evening School should be coded. Q: How should districts report ESE students? A: Districts have a choice of either coding all students or coding only those students who are pursuing an instructional program leading to a regular high school diploma. If you code a student who does not actually take the FCAT there will be no match and no further analysis by the department for that student. Q: Should we code students for attending Juvenile Detention Centers? A: Yes. Q: Should we code the responsible instructors for students attending Charter Schools? A: Yes. On March 23, 2001, DOE promulgated a memorandum to District School Superintendents from Betty Coxe, Deputy Commissioner for Educational Programs. That memorandum's stated subject was "Clarification of Memorandum dated January 22, 2001- Responsible Instructor-Reading, Writing and Mathematics." It reads: The new data element "responsible instructor- reading, writing, and mathematics" that is being collected will never be used by the Florida Department of Education to evaluate individual teachers. This new data is being collect [sic] at the state level for two primary reasons: to provide information to the State which allows the determination of the success of teaching programs and to track state-level educational trends. School districts have the sole responsibility of conducting teacher evaluations. Florida has a number of teacher-related initiatives that clearly need this data for program evaluation purposes. These include, but are not limited to, programs associated with teacher preparation, alternative certification, and interstate licensure reciprocity. Information must be gathered on the relative success of these programs to guide state policy. Trends must be identified in order to promote a system of ongoing quality improvement. Furthermore state law (F.S. 231.29) says that test scores are just one criteria [sic] used by school districts for evaluating teachers. Other criteria that districts should use are maintaining classroom discipline, knowledge of subject matter, ability to plan and deliver instruction, etc. In other words, there are various other criteria besides test scores that should be taken into account before school districts can evaluate teachers. Please disseminate this information as widely as possible within your district. Your assistance is, as always, much appreciated. The January 22, 2001, memorandum does not direct the school districts to submit the data element in any particular way and does not impose sanctions for any school district's failure to comply with its contents. It does contain the interesting language, for purposes of the case at bar, that DOE is "unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur." The document issued on March 23, 2001, does not provide any directives as to the method for designating the data element or impose any sanctions. At most, it suggests possible alternatives in reporting, with final decisions left up to the reporting agency. Indeed, if any sanctions exist with regard to the two memoranda, the sanctions are imposed by existing rules or statutes. These memoranda were intended to advise districts as to possible optional methods of reporting the new data element. If they had not been generated, school districts still would be required to file the new data element. In either case, schools and school districts (not DOE) make the ultimate determination of how to report the data element. Petitioner presented no evidence to demonstrate that the challenged memoranda impose any requirements or solicited any information not already specifically required by statute or rule. The concerns of Petitioner's members related in Finding of Fact 3 are speculative. To the extent that educator assessment, credit, and/or money awards are at issue, they would be affected, if at all, by their respective district's decisions at a different level and in a function(s) subsequent to DOE data collection. These memoranda do not impinge on independent evaluations, etc., by school districts. As to concerns over confidentiality of social security numbers, there was no evidence presented that the new data element does anything other than collect data on registered educators whose social security numbers are already known to the districts and DOE for retirement and certification purposes. No reason was demonstrated to suppose that a breach in the confidentiality of those social security numbers would occur as a result of the new data element or as a result of the challenged memoranda. There was anecdotal testimony to the effect that teachers have been placed in improper competition with one another due to these memoranda (allegedly unpromulgated rules) and that, as a result of this competition, apparently based on some teachers' speculation as to what the respective school districts may ultimately do with the data collected, those teachers are teaching reading at the expense of other subjects and/or are emphasizing reading about science and other technical subjects while eliminating more worthy "hands-on" projects and laboratory experiments of greater benefit to their students. Similar anecdotal testimony suggested that all teachers are now teaching so that their students read objective textual as opposed to "fun" or subjective material and so that their students are able to answer the type of questions posed on the FCAT, instead of gaining a broader range of knowledge. While these side- effects of certain teachers' perceptions of how their respective districts may use the data gathered and processed by DOE may demonstrate that the concept of accountability of teachers via the FCAT is either good or bad or valuable or not valuable, it fails to define the memoranda at issue as rules.
Findings Of Fact On April 7, 1976, respondent Ola Mae Williams resided with her husband, Fred Williams, at 825 Colonial Drive, Tampa, Florida. The night before, she had gone to bed somewhere around 10:30 or 11:00 p.m. At approximately 2:00 a.m. on April 7th, two detectives from the University of South Florida and two or three other uniformed officers came to respondent's apartment to execute a search warrant directed against this apartment and naming respondent's husband as the focal party suspected of engaging in illegal activities on the premises. Upon hearing a knock at the door, she opened the door but left the burglar chain engaged. The police officers identified themselves and advised her that they were there to execute a lawful search warrant. Respondent then left the door to get her robe. While the door was cracked open, the officers heard a flurry of activity within the apartment, saw Fred Williams running around and heard the toilet flushing. When respondent returned to the door, the police again ordered her to open the door. She then closed the door in order to release the burglar chain. At this point, the officers broke in the door with force. "A minute or so" elapsed between the time that respondent first opened the door and the time that the door was opened forcibly. After the officers were inside the apartment, respondent's husband kept yelling commands at her while the officers were telling her to sit down so they could read her rights and the warrant to her. Mr. Williams was physically subdued with handcuffs and respondent feared for his safety. Other than to request permission to get her husband's wallet and clothes, respondent offered no physical or verbal resistance to the officers after they came into the apartment. During the execution of the search warrant, the officers confiscated and seized checks, drivers licenses and other items of male identification bearing names of persons other than respondent and her husband; two sheets of photographs of respondent, lamination sheets, cash, a typewriter, a cassette tape and film strip entitled the "Cashier's Series" and a yellow ceramic planter containing fifteen small plants, ranging in height from five to eleven inches, which the officers suspected to be marijuana. Respondent and her husband were arrested and taken to the police station. Respondent was charged with felony possession of marijuana and counterfeiting activities. These charges against her were subsequently dropped by the state attorney. A newspaper article concerning respondent's arrest and the charges placed against her and her husband appeared on the day of her arrest. The Hillsborough County School Board suspended respondent from her teaching duties on April 7, 1976. On November 7, 1976, she was reinstated to her former position with retroactive pay. The two sheets contained photographs of respondent were annual school photographs. They were of too large a size to be used on a Florida driver's license. Respondent's photograph was not found on any of the seized identification items. The typewriter seized during the search was admitted by the officers not to be the one used in altering the identification cards. Respondent denied that she had any knowledge whatsoever about her husband's alleged counterfeiting activities. The only evidence presented which could lead to a different conclusion is the presence in the respondent's apartment of "The Cashier's Series" cassette and filmstrip. Neither the tape nor the filmstrip were introduced into evidence at the hearing. The two police officers who testified at the hearing could not recall or identify with any specificity what was contained on either the filmstrip or the cassette tape. They did recall that they contained information concerning the detection of bogus checks and improper identification. It was Ms. Williams' testimony that the tape and filmstrip were merely promotional material illustrating other materials available for purchase. She ordered this material because she was teaching a course involving business machines, and there were two cash registers in the classroom. Several students expressed an eagerness to learn about the cash register and she wanted to have some supplementary material thereon. The tape and filmstrip were sent to her school address and she picked them up from her teacher's mailbox on the way home, some one to two weeks before her arrest. Ms. Williams did not listen to the tape or view the filmstrip prior to her arrest. There was no equipment in her apartment with which to do so. Approximately one month prior to her arrest, respondent's husband showed respondent a planter and informed her that the plants contained therein were marijuana plants. Respondent told her husband to get rid of the plants because she did not want marijuana in her apartment. The next time she saw the planter and the plants was on the night of her arrest. The planter in which fifteen plants were growing was found by one of the police officers in the corner of a bedroom windowsill behind closed drapes. The window was located behind a solid headboard of the bed. Ms. Williams testified that she often went for weeks at a time without cleaning that windowsill and that the drapes in the bedroom were usually closed. While the two detectives who appeared at the hearing testified that they believed, from their past experience and training, the plants to be marijuana, neither could recall whether a reagent test was performed or any other laboratory report had been procured which would determine the identity of the plants. As noted above, respondent was suspended from her teaching position at Tampa Bay Vocational-Technical School on April 7, 1976. She was reinstated with retroactive pay on or about November 7, 1976. This was during the second nine week grading period of the first semester. According to respondent, she was called on a Friday and told that, if she wanted her job back, she was to report to school on the following Monday. On Sunday, she went to the home of the teacher who had been substituting for her during her suspension, discussed her procedures and obtained her keys and roll book. Respondent received no assistance or counseling from the school administration prior to her entrance into the classroom on Monday. No one from the administration accompanied her into the classroom or introduced her to the students. She told the students that she had been on leave and was now to be their permanent teacher. The evidence illustrates that some educators and students at the school were aware of respondent's arrest both in April of 1976 and when she returned to school in November, 1976. Respondent denies that she encountered any disrespect from her students after her return. Prior to April, 1976, respondent's teaching record was without blemish. In December of 1976, approximately one month after her return from suspension, Alberta Roberts, the Assistant Principal for Curriculum at Tampa Bay Vo-Tech, received complaints from eight students relating to respondent's grading assignments and methods of instruction. Ms. Roberts informed respondent's department head, Mr. Pat Clyde, of the complaints. Two or three conferences were had between Mr. Clyde, Ms. Roberts and respondent. It was found that respondent had miscalculated some of the grades, had erroneously recorded student absences, and that she had a higher than average failure rate in her classes. The student complaints occurred only during the first nine week period of respondent's return to school. She continued to have a higher than average failure rate in her classes. Since that first nine-week period of her return, no one from the school's administration has attempted to counsel with respondent or review her grades or teaching methods to determine the cause of student failures in her classes. The school's evaluation of respondent for the period ending in April, 1977, contained five areas of unsatisfactory performance and four areas needing improvement. The remaining twelve areas were satisfactory. The January, 1978, evaluation contained all satisfactory markings. In March of 1978, respondent was evaluated as satisfactory in all areas, with two exceptions. The evaluations illustrated that she needed improvement in the areas of "thorough in preparation of lessons, including written plans" and "materials are well organized for effective presentation of the subject matter." The evidence was undisputed at the hearing that no school or county administrator has observed respondent's classroom performance or attended her classes since her return in November, 1976. Her department head has never required respondent to submit her lesson plans to him. The only person ever to observe respondent's performance since her return to the classroom was Ann B. Dolgin, a witness called by respondent. Dr. Dolgin observed respondent's classes on June 8 and 9, 1977, and concluded that respondent's teaching exercises were average and her classroom management procedures were above average. She believed respondent to be an effective teacher, and her observations were consistent with respondent's last two evaluations performed at the school.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is recommended that the petition for suspension of respondent's teaching certificate be DISMISSED. Respectfully submitted and entered this 21st day of July, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Hugh Ingram, Administrator Profession Practices Council 319 West Madison Street - Rm 1 Tallahassee, Florida 32304 Robert J. Vossler 110 N. Magnolia Drive Suite 224 Tallahassee, Florida 32301 Dennis G. Diecidue Diecidue, Ferlita and Prieto, P.A. 601 Twiggs Street, St. 203 Tampa, Florida 33602
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board, for five days for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times pertinent to this case, Respondent was employed as a behavioral specialist teacher at the Sunset School ("Sunset"), a public school in Broward County. Sunset is an educational center servicing emotionally and behaviorally disabled students ranging in ages from 5 to 22, kindergarten through twelfth grades. The program at Sunset is unique in its behavior management system and mental health component which include academic, vocational, therapeutic, and behavioral interventions. On December 5, 2011, Respondent notified Principal Cottrell that she intended to seek a restraining order against Sunset student, A.W. In the dialogue that followed, Principal Cottrell requested that, when completed, Respondent provide him a copy of the court documents.1/ On that same date, Respondent presented to the Clerk of the Court for the Circuit Court of Broward County, Florida, with the intention of filing a Petition for Injunction for Protection Against Repeat Violence ("Petition") against A.W. Respondent, who was not represented by counsel, obtained the blank Petition from a clerk, and filled in the required information by hand. Upon completion, Respondent presented the Petition back to the clerk. The clerk then inquired as to whether Respondent had any additional documentation that she wished to attach to the Petition. It is undisputed that Respondent then attached four documents to the Petition. Specifically, Respondent attached 1) a Sunset School Code Report dated December 5, 2011, detailing a behavioral issue concerning A.W.; 2) a Sunset School Incident report dated December 5, 2011, again detailing a behavioral issue concerning A.W.; 3) a Sunset School Incident report dated November 1, 2011, documenting a behavioral issue concerning A.W.; and 4) a Student Accident/Illness Form dated November 1, 2011, documenting a physical confrontation by and between A.W. and Respondent. The Circuit Court issued a temporary injunction against A.W. precluding A.W. from knowingly coming within 100 feet of Respondent's vehicle and ordering the parties to refrain from contact while at Sunset. The parties were notified to appear and testify at a hearing regarding the matter on December 14, 2011. Respondent, as requested, provided Principal Cottrell with a copy of the Petition; however, the attachments were not included in the copied material. After being served with the temporary injunction, A.W.'s mother notified Principal Cottrell and complained, inter alia, that A.W.'s records had been attached to the same. In response to the parent complaint, on or about December 8, 2011, Principal Cottrell submitted a personnel investigation request to the School Board of Broward County Office of Professional Standards and Special Investigative Unit ("SIU"). The investigation request alleged that Respondent had committed Family Educational Rights and Privacy Act ("FERPA") and Code of Ethics violations. On or about December 14, 2011, the Board filed a Notice of Special Appearance and Motion to Seal Confidential Records in the underlying case. The judge granted the unopposed motion, concluding the records were confidential pursuant to section 1002.221(2)(a), Florida Statutes and "FERPA regulations," and ordered the records sealed. The previously requested SIU investigation was initiated on or about January 9, 2012. Upon completion, the matter was referred to the Professional Standards Committee ("PSC"). The PSC found probable cause that Respondent had committed misconduct in violating Board Policy 5100.1, and recommended she serve a suspension. Thereafter, the Superintendent of Schools reviewed the recommendation of the PSC, concurred, and recommended a five-day suspension. Finally, the Broward County School Board approved the recommended suspension. The documents Respondent attached to the Petition were A.W.'s educational records. Said records included personally identifiable information of A.W. obtained in the course of professional service. The parties stipulate that Respondent did not have the authorization or consent of A.W., A.W.'s parents, or Sunset to attach A.W.'s educational records to the Petition. Prior to the 2011-2012 school year, Respondent attended a preplanning conference wherein the teaching staff was advised of current information related to the Health Insurance Portability and Accountability Act (HIPPA), FERPA, federal and state law, and Board policies. Respondent also acknowledged receipt of the 2011-2012 Staff Handbook and the Code of Ethics. Moreover, Respondent signed an Employee Confidentiality Agreement regarding HIPPA. Additionally, the Board policy concerning student record confidentiality is published, maintained, and available to the teaching staff. Respondent conceded, as she must, that she was aware of the obligations as a behavioral specialist at Sunset to maintain the confidentiality of student educational and health records. Notwithstanding, Respondent credibly testified that, at the time, she believed the confidentiality requirements of said records would be maintained in the court proceeding. Principal Cottrell opined that Respondent's conduct impaired her effectiveness. His testimony on this point is set forth in full, as follows: Q. Does the fact that these records were disclosed by Ms. Finnk impair her effectiveness to you – her effectiveness as a teacher to you within the system? A. Within her capacity at Sunset School or in any capacity at Sunset School when I am the administrator responsible, absolutely. I need to know that each and every team member at Sunset, each and every employee is responsible and knowledgeable on confidentiality and follows it without question. The undersigned finds that the above-quoted testimony is insufficient to support a finding that Respondent's conduct impaired her effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 18th day of June, 2013.
The Issue Whether Respondent, Kenneth Mills (Respondent), committed the violations alleged in the Notice of Specific Charges filed January 9, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at Miami Lakes. At all times material to the allegations of this case, Respondent, Kenneth Mills, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was employed by Petitioner and was assigned to teach mathematics at Miami Lakes. All acts complained of occurred during Respondent's tenure at Miami Lakes. During the 2007-2008 school year, Bridget McKinney was assigned to duties as an assistant principal at Miami Lakes. Among her responsibilities was the task of assuring that classrooms were ready for an open house at the school. The school had been chosen to be the site of a "town hall meeting." Respondent's classroom was among those rooms to be used for the session, and he was notified to have the room straightened and ready to receive the public. During an inspection of Respondent's classroom in final preparation for the meeting, Ms. McKinney discovered numerous photographs of Respondent hugging students, a large poster of a female student, and locks of hair taped to a cabinet with notes attached. Ms. McKinney removed the items described above and went to place them in Respondent's desk. When she opened the desk drawer, Ms. McKinney discovered more pictures of female students. One of the photographs showed a female student wearing a t-shirt that depicted the words, "I HAVE THE PUSSY, SO I MAKE THE RULES." Additional photos of female students showed one standing on Respondent's desk. Respondent took a picture of a female student standing on his desk. The picture was taken after hours. The student was not enrolled in Respondent's class at the time the photo was taken. Respondent claimed the student made the unsolicited visit to his classroom because "he looked lonely." One picture stored on Respondent's district-owned computer showed a female student with an added "I Love You" border around the photo. Respondent admitted that he possessed a school identification badge of a female student who was also shown in the poster-size photo Ms. McKinney removed from Respondent's wall. After Ms. McKinney reported her discoveries to the principal, James Parker, Respondent's computer was confiscated and turned over to the school investigators to conduct an analysis of the hard drive content. After retrieving the data, images were stored on a DVD, and the matter was turned over to the Civil Investigation Unit for further review. Respondent was notified of the on-going investigation in writing and was placed on alternate assignment at Region Center I. The investigation of the matter was assigned to Terri Chester. Ms. Chester reviewed the images from the DVD. The DVD stored photos and videos that were taken by Respondent. The images depicted: several provocative pictures with nudity or partial nudity; the picture of the female student with the t- shirt proclaiming "I HAVE THE PUSSY, SO I MAKE THE RULES;" audio of Respondent calling a student "nerd;" students who do not want to be video taped by Respondent who he challenges; Respondent proclaiming that video will be posted to You Tube by the next day; and other classroom activities that are inappropriate such as students running around the room, climbing on chairs, and attempts made by one student trying to staple other students in the back. Throughout the depicted images, Respondent does not redirect students to appropriate activities and does not assist them in any mathematics-related endeavor. Based upon the foregoing, Ms. Chester concluded that Respondent's conduct violated School Board rules. When presented with the findings of Ms. Chester's investigation, Respondent sought additional inquiry into the allegations against him. Ms. Chester then reviewed all information Respondent presented. Afterward, Ms. Chester referred the matter to the OPS. Dr. Hernandez, District Director at OPS, conducted a conference for the record (CFR) with Respondent. The purpose of the CFR was to discuss the investigative findings and Respondent's future employment with Petitioner. Throughout the investigation and review process, Respondent has not denied taking the pictures and videos. Moreover, when confronted with the images from his district-owned computer he provided no plausible explanation for the materials. Subsequent to the CFR, Mr. Parker as well as other staff from the region office recommended termination of Respondent's employment with the school district. Among the reasons Mr. Parker recommended termination was Respondent's failure to abide by the educational principles concerning teacher conduct. Mr. Parker determined that Respondent's conduct impaired his effectiveness as a teacher since he failed to properly manage students, displayed an inappropriate familiarity with students, and took and retained improper images. At its meeting on October 17, 2008, Petitioner accepted the recommendation to suspend Respondent and initiated dismissal proceedings against him. Thereafter, Respondent timely requested an administrative hearing to contest the proposed dismissal. Respondent does not deny displaying the photographs in his classroom or the retention of locks of hair. Moreover, Respondent does not deny that he took the images that were stored on his district-owned computer. Photography is one of Respondent's main interests. He sought to combine his interest in photography with his classroom responsibilities. Finally, Respondent maintains that he did not do anything wrong and that he is the victim of an administrator trying to get him fired. Respondent advised that it was his intention to have a disruptive class at the time portions of the video were shot to add some levity to the class work. Respondent stated that during the two hour blocks of teaching allocated to each class that it was his desire to have the students have some levity and laugh. The UTD negotiated terms and conditions of employment for Petitioner and its teachers. Under the terms of the collective bargaining agreement, also known as the UTD contract, "any member of the instructional staff shall be suspended or dismissed at any time during the school year, provided that such charges against him/her are based upon Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order terminating Respondent's employment with the School District. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2009. COPIES FURNISHED: Kenneth Mills 17890 West Dixie Highway, Number 703 Miami, Florida 33160 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mr. Alberto M. Carvalho Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was employed by Petitioner as a teacher of electrical wiring at the Oren Douglas campus of the Pinellas Vocational Technical Institute beginning in August of 1981. In June of 1982, Respondent improperly removed an electrical fixture owned by Petitioner from school property without authorization. Following this incident, Respondent was warned not to again remove school property without obtaining prior authorization. At all times material hereto, a stockroom containing electrical supplies and equipment was maintained at Petitioner's electrical lab at Oren Douglas. The inventory of electrical supplies was maintained at the school for use by students in wiring classes in order to gain "hands on" practical experience. The entire inventory of electrical supplies was the property of Petitioner, and was not owned by any of the individual teachers at the school. As previously indicated, Respondent removed without authorization certain electrical equipment belonging to Petitioner in June of 1982. Upon discovering this transgression, school personnel held a conference, which included Respondent, at which time it was reemphasized that there existed an exclusive procedure and policy in force at the school governing removal of School Board property. During the entire time period that Respondent was employed at the Oren Douglas campus, the school policy required that no teacher take school property without first completing a "Property Removal Request Form," and submitting the completed form to the Director or Assistant Director of the school for approval. After the incident which occurred in June, 1982, Respondent was warned by the Director at the Oren Douglas campus, verbally and in writing, that school policy concerning removal of school property from campus would be followed and enforced. On or about March 24 or March 27, 1983, Respondent removed from the stockroom at Oren Douglas an explosion-proof switch box, approximately six inches by six inches, three inches thick, and made of malleable iron. The box was used to provide an electrical switching box in hazardous areas, such as those containing flammable dust or vapors, without danger of sparking or igniting the flammable material. Retail value of the box taken by Respondent was approximately $85. Respondent carried the explosion-proof box from the storeroom and placed it into his car, and drove away from the school premises with the box in his possession. The school had only one such explosion-proof box in the inventory at the stockroom, which box was missing from inventory after the hereinabove described actions of Respondent. Respondent had no teaching duties which would have entailed the use of the explosion-proof box, and did not follow school procedure by first completing a "Property Removal Request Form" and having that form approved prior to removing the box from campus. On or about April 4, 1983, the Oren Douglas campus had in its electrical supply inventory three one and one-half inch "SLB's," which are L- shaped conduit bodies through which wire is threaded. These items have a retail value of approximately $20. On that date, Respondent removed one of the one and one-half inch SLB's from Petitioner's inventory, placed it in his automobile, and removed it from campus without first obtaining proper authorization in accordance with school policy. Further, on or about April 4, 1983, Respondent removed a neutral bar from the electrical lab stockroom at the Oren Douglas campus. This item had a retail value of approximately $5, and is used as a component part in electrical panels. Respondent failed to follow established school procedures regarding removal of items of school property from the campus. As far as can be determined from the record in this proceeding, Respondent never returned any of the items described above which he removed from school property without the necessary authorization. In reaching the above findings of fact, the Hearing Officer is mindful of direct conflicts in testimony among the various witnesses testifying in this proceeding. In attempting to resolve these conflicts, the Hearing Officer has taken into consideration the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias, or prejudice which might affect the credibility of the various witnesses.
The Issue The issue in this case is whether Respondent violated misconduct rules relating to educators and, if so, whether discipline, up to and including dismissal, should be imposed by Petitioner.
Findings Of Fact Petitioner, Orange County School Board, is responsible for the operation of all public schools within the Orange County Public School system. Petitioner is responsible for hiring and monitoring qualified individuals who teach students within the OCPS system. Teachers may be either Professional Service Contract employees or employed under an annual contract. Professional service contract employees are entitled to all rights, privileges, and responsibilities set forth in the Contract Between [Petitioner] and The Orange County Classroom Teachers Association. Respondent received his teaching certificate in the State of Florida in 1985 and has taught school in Orange County since that time. At all times material hereto, Respondent was employed as a Professional Service Contract employee with OCPS. Respondent transferred to WPHS at the beginning of the 2003-2004 school year. Prior to that time, Respondent had been a teacher at Jones High School, also within the OCPS system. Jones High School is a predominantly African-American school which had received two consecutive "F" grades from the Department of Education due to student achievement (or lack thereof) on the Florida Comprehensive Assessment Test (FCAT). WPHS, on the other hand, was a predominantly white school which had not received "F" grades relating to the FCAT.1 Respondent was transferred to WPHS to teach Algebra I, primarily to students who were struggling with Algebra. His students were, by and large, tenth graders who were taking Algebra I, which normally is a ninth grade class. Some of the students had previously failed Algebra; others were taking the class for the first time. When Respondent was assessed by an assistant principal for school year 2004-2005, he received an "ER" grade in planning and delivering instruction. "ER" meant effective, but with recommendations. A comment to his assessment stated, "Mr. DeShay needs to work on motivating his students so they will want to perform to higher standards within his class." The following year (2005-2006), Respondent received another "ER" grade in planning and delivering instructions. This time, the comment stated, "Mr. DeShay needs to plan his instructional time so that students are constantly engaged during the period. This will also assist in classroom management problems." Because Respondent received two consecutive "ER" grades, he was placed on a Professional Improvement Plan (PIP) for the 2006-2007 school year. The PIP targeted three areas of competencies: classroom management and discipline; planning and delivery of instruction; and professional responsibility. The PIP commenced on October 26, 2006, and was to run for a period of 90 school days, i.e., until April 19, 2007. At the end of the PIP period, Respondent had not made improvements in the areas of "planning and delivery of instruction" and "classroom management and discipline." As a result, Respondent received a grade of "NI" on his final assessment. "NI" means the instructor needs improvement in order to meet expected standards. The PIP was then extended another 30 school days, commencing at the start of the 2007-2008 school year. Respondent had never received an "NI" grade on an evaluation before the final assessment in April 2007. Respondent had never been disciplined during the course of his employment with the OCPS system prior to coming to WPHS. He had a reputation as an effective and respected teacher while at Jones High School and previously. During the 2007-2008 school year, while Respondent was still under the extended PIP, Eric Close, a technology coordinator at WPHS, had occasion to log on to Respondent's school computer. Close was, at the request of another teacher, seeking to retrieve a copy of math software believed to exist on Respondent's H drive, located on the school network. While Close was retrieving the software, he noticed a Word document entitled, "Your Neighbor is Watching You." Upon a quick scan of the Word document, Close ascertained that it contained potentially inappropriate material. Close reported his finding to his superior and to administration. When administration reviewed the "Neighbor" story, it was determined to be objectionable and inappropriate due to its content. The story was about a somewhat benign voyeuristic encounter between neighbors, but was certainly not appropriate for high school students. It did, in fact, violate administration's interpretation of OCPS Management Directive A-9. Management Directive A-9 is a work rule prohibiting employees from using school computers for certain specified activities or purposes. Pertinent portions of Management Directive A-9 state: Employee Access to Network * * * District employee shall not conduct a private enterprise, defined as offering or providing goods or services for personal use on school time. District equipment or supplies, including technology, computers and other equipment . . . may not be used for private business . . . unless expressly authorized by the Superintendent . . . The District authorizes employees to use District computer technology resources and data bases for assigned responsibilities. These resources shall be used by employees to enhance job productivity as it relates to District business. These resources shall be used for District-related purposes and not for personal use or gain or for the benefit of private, "for profit" or "not for profit" organizations. Network Security and Acceptable Use a. Employees shall not use the Web or FTP to search or download obscene or inappropriate material from the Internet. Employees using District computers who discover they have connected with a web site that contains sexually explicit, racist, violent or other potentially offensive material must immediately disconnect from that site. The ability to connect with a specific web site does not in itself imply that permission is granted to visit that site. * * * Due Process a. Any employee failing to comply with this Management Directive may be subject to disciplinary action as well as civil liability or criminal charges. Searches and Seizures Employees have limited privacy expectation in the contents of their personal files on the District Network. . . At any time and without prior notice, the District reserves the right to examine electronic mail messages, files on personal computers, web browser cache files, web browser bookmarks, and other information stored on or passing through District computers. Routine maintenance and monitoring of the Network may lead to discovery that a user has violated this Management Directive or the law. An individual search in collaboration with the employee's supervisor or Employee Relations will be conducted if there is a reasonable suspicion that a user has violated the law or this Management Directive. All employees are expected to be aware of and adhere to Management Directive A-9. Each time a user logs on to a District computer, a "pop-up" appears that includes a warning against improper use. The pop-up says in pertinent part: NOTICE TO USERS This is an Orange County Public Schools owned computer. It is for authorized use only. You are responsible for all access that occurs using your logon and password. . . Unauthorized or improper use of this system may result in disciplinary action as specified in Management Directive A-9 . . . as well as civil and/or criminal penalties. [Site to Management Directive A-9 is provided.] The log-on pop-up appeared on Respondent's screen each time he logged on at school. Respondent was aware of Management Directive A-9, but doesn't know if he ever read the entire five- page directive in its entirety. He does, however, acknowledge that he is bound by the terms of that directive. After Close found the seemingly incriminating document on Respondent's computer, Administration conducted a full review of Respondent's H drive and computer in its entirety. Numerous personal files were found which, in the view of school administration, violated Management Directive A-9. A partial list of the questioned files and documents follows: Stories entitled, "Your Neighbor is Watching You" and "Life Changes Quickly" (about a male business executive's sexual interest in his newly hired secretary), and "Luvystory." Security reports for a job where Respondent had worked part time. On-line business (money-making) opportunities. Information about an on-line business (www.Getestore.com). Shopping from internet retailers, including www.Amazon.com, www.Perfume.com, www.Walmart.com and others. Digital pictures of scantily clad women related to a proposed business venture by Respondent. A social networking site called www.blackmembervoices.com with Respondent's profile, photo and contact information. Numerous non-educational sites relating to funny videos, court TV, vacation sites, golf sites, etc. Personal correspondence written by Respondent. It is clear Respondent used his school computer on many occasions to at least visit suspect web sites, engage in business and/or work on non-school-related documents. What is less clear is the extent to which those sites or documents were accessed during classroom periods. Petitioner's technology personnel were able to identify all of the sites and documents existing on Respondent's computer. An exhaustive list of each site, including when each had been accessed, was provided at final hearing. The list clearly shows that Respondent accessed sites or opened questionable files during classroom periods, during Respondent's planning period, and before and after school. The technology people could not, however, ascertain how long each site or document remained on Respondent's screen once it was opened. Respondent maintains that he only worked on documents for brief periods of time and perhaps only accessed them to transfer from a pen drive or diskette to his H drive without working on them at all. He says that he did not open any inappropriate documents in the presence of students. No students, as far as he knows, ever accessed Respondent's computer. It is clear that Respondent's school computer contained documents and materials that violated Management Directive A-9. It is clear those documents, materials and questionable web sites were accessed numerous times. It is not clear how much time Respondent spent on the documents, viewing the sites, or engaging in personal business on the computer. "Willful neglect of duty" has been defined as a constant and continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. See Fla. Admin. Code R. 6B-4.009(4). Respondent's continued use of his school computer for personal reasons, however brief each use might have been, constitutes willful neglect of duty under this definition. By having objectionable and potentially harmful information and documents on his computer, Respondent breached his employment agreement. Respondent was not protecting students from conditions harmful to their learning. Although no students were known to actually see the material, its mere existence was in violation of Respondent's obligations. Further, by taking time out of his work day to engage in personal business and other interests, Respondent has subordinated his professional obligation to his students. Respondent's explanations about his use of the computer bear some discussion. The explanations do not deny the existence of the materials or access to web sites, but seek to minimize the significance of the use (or misuse). As for the short stories on the computer, Respondent says he was taking an on-line literature class and the stories were part of his assignments. He would submit stories and they would be evaluated by instructors. Respondent's intent was to receive some sort of certification of completion from the class and submit that to his employer (OCPS) as evidence that he was attempting to enhance his education. Respondent never finished the on-line course.2 As for use of the school computer, Respondent says (at page 444 of the hearing Transcript), "So anytime I'd use those things, I would--if I had some spare time, I'd pop it in and work on it, and I'd save it on my H drive." This testimony somewhat contradicts Respondent's claim that the documents were only accessed when he was downloading them from a pen drive. The pictures of scantily clad women were explained by Respondent as merely advertisements that had been part of a web sites (Men's Health magazine) he had accessed during school hours. He did not download the pictures to his H drive. Also appearing on the computer were some pictures described as "modeling photos." Respondent says those were pictures he accessed from a modeling site with the intent of creating a DVD or PowerPoint presentation for use by the models in marketing themselves. Respondent says he did not know any of the models and that this proposed business never came to full fruition. Respondent says he worked on that project using his school computer, but during after-school hours. Respondent says that although he had documents and information about his personal businesses on the school computer, he never used the computer to order supplies for his business. He admits ordering some Beanie Babies, but says those were ordered as gifts for people, not as replacement goods for his vending company business. Respondent did draft contracts on his school computer, but says he never used them in conjunction with his business. The security logs on Respondent's computer were done for a friend. Respondent had worked as a part-time security guard at an apartment complex. When he could no longer do so because of the requirements of his teaching job, Respondent was able to turn the job over to a friend. That friend could not write well, so Respondent would do the friend's weekly logs for him on the computer. In total, it is clear that Respondent did utilize his school computer for personal matters and that some of the personal matters were not appropriate for high school students in his charge. The fact that no students saw the inappropriate material--as far as anyone knows--does not minimize the seriousness of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Orange County School Board finding Respondent guilty of misconduct in office and imposing the following sanctions: Uphold Respondent's suspension to date; reinstate Respondent's professional services contract commencing as soon as practicable; and require Respondent to complete remedial training concerning professionalism and use of school property. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes, and administrative rules or section 1012.795(1)(a),1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Richardson holds Florida Educator's Certificate 696450, covering the areas of Elementary Education and English for Speakers of Other Languages (ESOL), which is valid through June 30, 2019. At all pertinent times, Mr. Richardson was employed as a fourth and fifth-grade reading teacher at WHE. As Ms. Kristen Rodriguez later testified, during the 2012-2013 school year, she encountered several students who asked her to let them remain with her in the media center at WHE rather than return to their scheduled class with Mr. Richardson. Based upon their accounts of Mr. Richardson's behavior in the classroom, she took the students to the school office and asked them to talk to the principal. The Broward County School District (District) subsequently conducted an investigation. Student A.C. credibly testified at hearing that during the 2012-2013 school year, when she was a fourth-grade student in his class, Mr. Richardson would sometimes scream at students who were not behaving, but did not scream at the well-behaved students. She testified that on a loudness scale of 1 to 10, he was a "7," while she rated other teachers at "5." Student A.C.'s testimony was supplemented and explained by the written statements of other students in that class: Student G.R. wrote that Mr. Richardson screamed at him close to his face; Student H.T. wrote that Mr. Richardson would scream if he was mad; Student J.G. wrote that when Mr. Richardson yelled at some students, he put his face within inches of the students' faces; Student T.W. wrote that he would yell in students' faces; and Student M.D. wrote that Mr. Richardson would yell in students' faces from inches away. The evidence was clear and convincing that when students were misbehaving, Mr. Richardson would sometimes yell or scream at them, placing his face close to theirs. Student J.G. credibly testified that if a student "wouldn't do like the work or behaved bad, he [Mr. Richardson] would grab them by their shoulders and yell at them and shake them." Student J.G. went on to clarify, "I mean not that bad, but like to get ahold." Student J.G.'s testimony was supplemented and explained by the written statements of other students: Student G.R. reported that Mr. Richardson "grabbed this kid and shook him"; and Student A.C. wrote that Mr. Richardson would shake students who were being bad, writing that "[w]hen he shaked [sic] kids he would shake them by the shoulders, on a scale from 0 to 5 he would shake kids like about a 2." The Department of Education (DOE) was notified of the allegations against Mr. Richardson. On or about April 5, 2013, Mr. Richardson received notice from Chief Marian Lambeth that the Office of Professional Practices of DOE had opened a case for purposes of investigating Mr. Richardson's alleged inappropriate conduct; and, if founded, the allegations could lead to disciplinary action against Mr. Richardson's Florida Educator's Certificate. On April 18, 2013, Mr. Richardson's attorney sent written notice to Chief Lambeth informing the DOE of her representation of Mr. Richardson in their investigation and requesting a copy of their investigative report upon its completion. Mr. Richardson was copied on the correspondence. As documented by letter later sent to Mr. Richardson, the Professional Standards Committee of the Broward County Public Schools met on May 8, 2013, and determined that there was no probable cause to support a charge of battery. However, the letter stated, "[l]et this correspondence serve as reprimand that any future violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession will result in a recommendation for further disciplinary action up to and including termination."2/ Mr. Richardson successfully filed a grievance regarding the letter of reprimand imposed by the District. By letter dated March 26, 2014, Mr. Lerenzo Calhoun, employee and labor relations specialist of the District, advised the Broward Teachers Union, "[I]t has been determined that the written reprimand issued to the grievant be rescinded." On April 16, 2014, Mr. Richardson completed a "GC-10R Renewal Application Form rev 06/10 Legal Disclosure 1 - District Version" to initiate renewal of his Florida Educator Certificate, which was due to expire on June 30, 2014. Instructions on the bottom of the form direct the applicant to provide additional detailed information on a Legal Disclosure Supplement if any of the preceding 21 questions on the page are answered affirmatively. Mr. Richardson, having correctly answered "no" to 20 of these questions that deal with sealed records, criminal records, and license sanctions, but "yes" to the single question that asks if there is a "current investigative action" pending, turned to the supplementary page, "GC10R Application Form rev 06/10 Legal Disclosure 2 - District Version." Other than the applicant's name, however, the supplementary form solicited information about only three topics, each in its own section: "Sealed or Expunged Records"; "Criminal Offense Records"; and "Professional License or Certificate Sanctions." Mr. Richardson had no sealed or expunged records and so could not provide any supplementary information in response to the questions in that section. He had no criminal offense records and thus similarly could not provide responses to the questions in that section. He had no professional license or certificate sanctions and so could not answer those questions either. There were no questions pertaining to ongoing investigations. He logically left the supplementary page blank, and submitted the renewal application to the District's office, which was authorized to reissue the certificate. On the application, he made full disclosure of the pending investigation, complete with a handwritten notation indicating that there was no decision as of yet and including the investigation case number for easy reference (he volunteered this, for remarkably there is no question or blank space to include this information anywhere on the forms). The renewal application was reviewed on behalf of the District by Ms. Sheila Gipson, a certification specialist for the District. Ms. Gipson, dutifully implementing the policy reflected in the form's directions to complete the supplemental disclosure, refused to process the renewal application, deeming it incomplete. On April 23, 2014, Ms. Gipson sent an e-mail to Mr. Richardson illogically repeating the instruction on the form that if any question on page 4 was answered in the affirmative, that page 5 (the supplement) must be completed, and directed him to do so. If Mr. Richardson—eager to have his license renewed—was baffled by Ms. Gipson's e-mail and nonplussed at the impossible guidance it contained, his bewilderment might be excused. As previously noted, he had already provided complete details about the ongoing investigation to the District and could provide absolutely no information responsive to any of the supplemental questions. In any event, it is clear that strict enforcement of this "catch-22"3/ has the practical effect of preventing anyone under investigation but awaiting determination from completing an application at all. It is not clear if this structure results from accident or disingenuous design. Mr. Richardson testified that he telephoned Ms. Gipson and explained his dilemma. According to Mr. Richardson, Ms. Gipson concluded that he should not have said "yes" to the investigation question if no sanctions had been imposed, again explaining to him that any "yes" response meant that the application could not be processed without sanctions information. He testified that she directed him to change his answer on page 4 and resubmit the application so it could be considered complete. Mr. Richardson's testimony as to what Ms. Gipson told him was unrefuted. Ms. Gipson's instruction to Mr. Richardson did not make sense, any more than the form itself did. Mr. Richardson did as Ms. Gipson had instructed and filled out a second application form, which he dated April 26, 2014, indicating no "current investigative action pending" as he was told to do. He executed the Affidavit, which in bold print states: "Giving false information in order to obtain or renew a Florida Educator's Certificate is a criminal offense under Florida law. Anyone giving false information on this affidavit is subject to criminal prosecution, as well as disciplinary action by the Education Practices Commission."4/ On or about April 23, 2014, notice had been sent to both Mr. Richardson and his attorney that the DOE's preliminary investigation was completed and available for review. An Informal Conference was scheduled for May 22, 2014. Both Mr. Richardson and his attorney acknowledged receipt of the notice on April 28, 2014. After some delays, reflected in e-mail communications, Mr. Richardson hand-delivered the second application to Ms. Gipson, who received it on May 2, 2014. The Commissioner has failed to show that Mr. Richardson gave false information with the intent to deceive or defraud the District or DOE. Mr. Richardson's alternative explanation of his intent is plausible given the irrational structure of the application form and the fact that he had already fully disclosed the existence of the investigation to the District in the earlier application dated April 16, 2014. His insistence that his only intent was to break the bureaucratic logjam and allow his application to be considered complete, as the District's certification specialist, Ms. Gipson, advised him to do, is plausible. Mr. Richardson's testimony that Ms. Gipson advised him to fill out the second application as he did was not a new assertion: he had said so nearly two years prior to the hearing in his deposition. The Commissioner did not list Ms. Gipson as a witness, and she did not testify. Mr. Richardson's testimony regarding the April 26, 2014, application was unrefuted. The Commissioner failed to prove fraudulent intent. There was no competent evidence presented at hearing that Mr. Richardson ever used profanity in the classroom. Although there was considerable testimony at hearing about a clinic pass associated with an injury to Student N.M. on an occasion when Mr. Richardson's class was engaged in "indoor P.E.," it was not shown that Mr. Richardson in any way caused that injury, and he was not charged with doing so in the Administrative Complaint. There was no competent evidence that Mr. Richardson or any other person ever threw a book at Student N.M., as was charged. Mr. Richardson has been employed by the District for almost 21 years. He has never before had any discipline imposed against his license. He has taught successfully at Challenger Elementary School for almost five years after the 2012-2013 school year, without incident. Ms. Kalima Carson testified that she co-taught with Mr. Richardson. As she testified, he was a good classroom manager. Ms. Carson also credibly testified that he was a good teacher and that his students showed tremendous academic gains. As Ms. Diane Velasco-Ortiz credibly testified, Mr. Richardson was good at motivating his students, and he did well with students who faced challenges at home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Elijah Mark Richardson in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e); issuing him a letter of reprimand; and placing him on probation for a period of one employment year. DONE AND ENTERED this 16th day of April, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 16th day of April, 2018.
The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
Findings Of Fact Parties. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon"). Allegations and Investigation. In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony. On October 23, 2006, J. B. sent Brenlla another e-mail. In this message, J. B. demanded that Brenlla call him "ASAP" on a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J. B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J. B. not to call or contact her again. J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family." On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged. The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other. Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that J. B. leave the school premises (on which he was trespassing), and she called the school police. Arrest and Prosecution. On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor. The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B. The Operative Historical Events. Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the only two witnesses who really know for sure what happened is the more believable. Having listened carefully to and closely observed J. B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things. J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity. Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next. J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J. B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters. More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are: (a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected. Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard. The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage". The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows. The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation. The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.) Nearly 80 percent of the documented conversations, or 156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of 53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills. The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage. Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact by most reasonable measures, especially in view of the fact that J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school. Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations (102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day. Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.) The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair. The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students. As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores. The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex." Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative. Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time. J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle. J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions. J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited J. B. at his apartment once or twice and had sexual intercourse with him there. The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002. Gradually, though, the relationship began to fizzle out. With J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation. Determinations of Ultimate Fact The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010.
