Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
The Issue Whether Respondent engaged in the conduct alleged in the Administrative Complaint. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Teacher Certification Respondent is a teacher by profession. She holds a certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that she is eligible to teach in the State of Florida in the areas of early childhood education, elementary education, ESOL, and exceptional education (specific learning disabilities, emotionally handicapped, and mentally handicapped). The certificate's "validity period" is July 1, 1993, through June 30, 1998. Respondent's Employment History Respondent has been employed by the School District since August of 1987. She holds a professional services contract. She is currently under suspension (without pay) pending the outcome of this disciplinary proceeding. For the duration of her employment with the School District, Respondent has held an instructional position at Forest Hill Elementary School (Forest Hill), the principal of which, since the 1988-89 school year, has been Linda Hardy. During her early years at Forest Hill, Respondent taught emotionally handicapped students. Having to deal with these special-need students, however, became too stressful for her. She therefore was moved to the regular education program at the school and served as a regular fifth grade classroom teacher until her removal from the classroom in November of 1996 when the school administration learned of the criminal conduct in which she had engaged the month before (that is described in the Administrative Complaint). Respondent's Classroom Performance Respondent's classroom performance at Forest Hill was erratic. Principal Hardy had various informal conferences with Respondent during which she identified for Respondent those areas of Respondent's performance in which improvement was needed. Respondent's performance in these areas would improve and reach a satisfactory level following each conference, but only for a limited period of time, after which it would decline again, thereby necessitating the convening of another conference. As Principal Hardy stated in her testimony at the final hearing, Respondent's performance was "like a roller coaster." Respondent nonetheless received an overall satisfactory rating on every annual written evaluation she was given while at Forest Hill. There were, however, on each of these evaluations, "areas of concern" noted.1 These "areas of concern" primarily involved Respondent's interaction with students, parents and colleagues. Respondent's Prior Disciplinary Record Prior to her removal from the classroom in November 1996, the only discipline she had received was a written reprimand for failing to timely submit lesson plans and other paperwork. Respondent's Rejection of the Suggestion to Participate in the Employee Assistance Program Particularly during the latter part of the period that she served as a regular classroom teacher, Respondent had difficulty coping with the stress she was experiencing in both her professional and personal lives. Principal Hardy, in whom Respondent had confided about these problems, suggested on more than one occasion that Respondent utilize the services of the School District's Employee Assistance Program. Respondent declined to follow Principal Hardy's suggestions. She advised Principal Hardy that it was unnecessary for her to seek assistance from the Employee Assistance Program since she was "seeing her own doctor" to help her with these problems. The Granting of Respondent's Request for Extended Leave By letter dated November 8, 1995, which read, in pertinent part, as follows, Respondent requested an extended leave of absence from her position with the School District: Effective 11-8-95, I am requesting a temporary leave of absence from my fifth grade teaching position at Forest Hill Elementary School (0621). At the present time it would be in the best interest of my students if I take a temporary leave of absence. During this temporary leave of absence I will be under the care of Doctors Jeanne Yetz [and] Mark Ellinger . . . . Respondent was granted a leave of absence from November 8, 1995, until January of 1996. Respondent's Mental Health Dr. Mark Ellinger is a clinical psychologist who has been treating Respondent (using psychotherapy) since August of 1994, for problems relating to mood, interpersonal relations, and substance abuse and dependence. Dr. Ellinger's treatment has been supplemented by medication (to reduce anxiety and for depression) prescribed by a psychiatrist, Dr. Jeanne Yetz. Over the period of time that she has been treated by Drs. Ellinger and Yetz, Respondent's condition has worsened. Dr. Ellinger's original diagnosis, at the time treatment began, was depressive disorder NOS (Not Otherwise Specified), a very mild disturbance. His secondary diagnosis was post-traumatic stress disorder. (Respondent related to Dr. Ellinger that, during her childhood, she had been sexually molested and verbally and physically abused.) More recently, in October of 1997, Dr. Ellinger determined that Respondent was suffering from major depression recurrent, borderline personality disorder, and cannabis dependence (in partial remission). Major depression recurrent is the most severe form of depression. Borderline personality disorder is also a very serious mental illness. It can extend over a lifetime and is difficult to treat effectively. Persons with borderline personality disorder struggle to control their anger and rage and to act appropriately, particularly in their dealings with others. As a result, they have difficulty maintaining stable interpersonal relationships. Cannabis dependence is a maladaptive pattern of marijuana use leading to clinically significant impairment or distress. It is more serious than cannabis abuse, which, unlike cannabis dependence, involves merely periodic, rather than ongoing, marijuana use. On November 5, 1997, Dr. Ellinger filled out a Functional Capacities Evaluation form (FCE Form) describing Respondent's abilities in the following areas: Ability to relate to other people; Restriction of daily activities, e.g. ability to attend meetings, socialize with others, attend to personal needs, etc.; Deterioration of personal habits; Constriction of interests; Understand, carry out, and remember instructions; Respond appropriately to supervision; Perform work requiring regular contact with others; Perform work where contact with others will be minimal; Perform tasks involving minimal intellectual effort; Perform intellectually complex tasks requiring higher levels of reasoning, math and language skills; Perform repetitive tasks; Perform varied tasks; Makes independent judgment; Supervise or manage others; Perform under stress when confronted with emergency, critical, unusual or dangerous situations; or situations in which working speed and sustained attention are make or break aspects of the job; and Ability to work relative to the attached job description. Dr. Ellinger indicated on the FCE Form that Respondent had a "mild" impairment ("[s]uspected impairment of slight importance which does not affect functionality ability") in areas 3, 11, and 12; a "moderate" impairment ("[i]mpairment affects but does not preclude ability to function") in areas 4, 5, 8, 9, and 10; and a "moderately severe" impairment ("[i]mpairment significantly affects ability to function") in areas 1, 2, 6, 7, 13, 15, and 16.2 Dr. Ellinger sent the completed FCE Form to the "claims advisory agent" representing the insurance company with whom Respondent had filed, in May of 1997, after the initiation of this disciplinary proceeding, a claim seeking disability insurance benefits. Dr. Ellinger also completed and sent to the "claims advisory agent" a Mental Status Supplemental Questionnaire (Questionnaire), in which he stated, among other things, the following: She [Respondent] continues to struggle with the above listed problems [problems relating to mood, substance abuse and interpersonal relations] and those have gone on for years. Mood is intermittently depressed, anxious and irritable. Thinking processes are intact with some moderate deficit due to mood disorder and stress of medical problems. Intelligence is normal. Perception shows some deficits and judgment has been poor in recent past evidenced by legal problems. Behavior has been impulsive and aggressive. He also indicated in the completed Questionnaire that one of Respondent's "treatment goals" was to "develop [a] new career due to [her] disability." It is important for Respondent to "develop [a] new career" inasmuch as her deep-rooted and severe mental health problems have significantly impaired her ability to function effectively as a classroom teacher.3 Respondent's Relationship with the Scrivos In 1996, Respondent moved into an apartment building on Seapine Way (Seapine Apartments) in Greenacres, Florida. Living in the apartment directly beneath Respondent's was the Scrivo family: Joseph, Sr. (Joe); his wife Dana; and their children, Joseph, Jr., and Gianna. Joseph, Jr., and Gianna are now three and eight years of age, respectively. Gianna is now, and has been at all times material to the instant case, a student at Forest Hill. After moving into the Seapine Apartments, Respondent began to socialize with the Scrivo family and became friends with Dana. Respondent, however, did not get along well with Joe. Joe said things to Respondent that Respondent considered to be insulting. She also suspected that Joe was the person who was leaving the pornographic material she started to find at her front door in the morning. (In fact, Joe was not the culprit.) The Scrivos' Separation In the summer of 1996, Joe and Dana had marital problems. As these problems escalated, Joe began to secretly tape record Dana's telephone conversations at home. With Respondent's assistance, Dana discovered that Joe was making these tape recordings. On August 7, 1996, Joe and Dana separated. Dana and the children remained in the Seapine Way apartment. Joe moved into a trailer located at 6074 South 16th Way in West Palm Beach. Dana obtained a restraining order against Joe. The restraining order prohibited Joe from having contact with Dana, except to the extent that such contact was necessary for Joe and Dana to discuss and to tend to the needs of their children. Dana made Respondent aware of the fact that she had obtained a restraining order against Joe. Joe's October 23, 1996, Visit to the Seapine Apartments Gianna had trouble dealing with her parents' separation. On the evening of October 23, 1996, Gianna was particularly upset. Dana telephoned Joe and told him that she wanted to speak to him in person about Gianna. Later that evening, Joe drove to the Seapine Apartments to meet with Dana. Respondent saw Joe in his van outside the apartment building. She telephoned the police and reported to them that Joe was on the grounds of the Seapine Apartments in violation of a restraining order that had been issued against him. When the police arrived on the scene, Joe and Dana were in Joe's van talking to one another. The police questioned Joe and then spoke to Dana. Dana told the police that she had requested the meeting with Joe to talk to him about the emotional problems their daughter was experiencing. She further informed the police that the restraining order did not bar Joe from meeting with her to discuss such a matter. The police left without taking any action. The Vandalizing of Respondent's Car The following afternoon, Thursday, October 24, 1996, Joe left town to visit his aunt in Key West, Florida. Sometime after Joe left town, during the evening of October 24, 1996, or the morning of October 25, 1996, before approximately 7:45 a.m., the front of the exterior of Respondent's automobile was damaged while the automobile was parked in the parking lot outside her apartment. It appeared to Respondent, who discovered the damage at approximately 7:45 a.m. on October 25, 1996, as she was about to get into her car and drive to work, that someone had thrown paint remover on the car. Respondent reported the damage to the police and then drove to work. After work she went to a body shop to obtain an assessment of the damage that had been done to her automobile. She then returned home. The "Trashing" of Joe's Trailer and the Theft and Use of Joe's Credit Cards From the time she returned home until the early morning hours of Sunday, October 27, 1996, Respondent remained awake and stewed about what had been done to her car. She felt as if she had been "violated." The more she thought about it, the more upset and angrier she became. Although she was experiencing these negative feelings, Respondent believed that there was no immediate need to seek the assistance of Dr. Ellinger, with whom she had an appointment scheduled for the following week. She thought that this situation "was something that [she] could actually work through" herself. As it turned out, she was wrong. Respondent erroneously believed that it was Joe who had damaged her automobile and she decided to get even with him by doing damage to his possessions. She knew that Joe was out of town, so, during the early morning hours of Sunday, October 27, 1996, she drove to Joe's trailer with the intention of vandalizing it and its contents. Upon arriving at her destination, she broke into the trailer and, in accordance with her plan, proceeded to willfully and maliciously do extensive damage to the interior of the structure and the possessions of Joe's that were in the structure. Among other things, she flooded the trailer by stopping up the sinks, turning on the faucets, and letting the water run; spread and smeared food items that were in the refrigerator on the floor, walls, ceiling, furniture, and photographs, including photographs of the Scrivo children; slashed Joe's clothes and his bed with a knife; and damaged electronic equipment. In addition, she stole from the trailer three of Joe's credit cards, which she subsequently used to purchase, by fraudulent means, in excess of $300.00 worth of merchandise. Respondent's "trashing" of Joe's trailer and her theft and fraudulent use of his credit cards was related to her mental illness, which made it difficult for her to control her emotions and to exercise restraint (although she knew what she was doing and that her actions were wrong). Respondent engaged in this conduct, notwithstanding that she was at the time, and had been for approximately the previous 26 months, under the care of, and receiving treatment from, Drs. Ellinger and Yetz. In fact, Dr. Ellinger had specifically counseled Respondent to make every effort to avoid being provoked by Joe. There is no guarantee that Respondent will not engage in similar inappropriate conduct in the future. Indeed, given the nature of her mental illness, it is more likely than not that she will. The Discovery of Respondent's Crimes Respondent also took from the trailer, when she left after her rampage, three or four audio cassette tapes that Joe had used to secretly tape record Dana's telephone conversations before their separation. Respondent left the tapes outside the front door of Dana's apartment along with a note which read as follows: These are the tapes that Joe used to record your phone conversations. From a friend. When Dana found the tapes and read the note she figured that someone had broken into Joe's trailer. She suspected Respondent as having been the culprit because, to Dana's knowledge, other than Joe and her herself, only Respondent and a friend of Dana's who lived in New Jersey knew of the existence of the tapes. Dana asked two of her downstairs neighbors who were friendly with Joe to go check on Joe's trailer. They agreed to do so. Some time later, one of them returned and informed Dana that Joe's trailer was flooded and that the police had been called to the scene. The other neighbor telephoned Joe, who was still in Key West, and told him about the damage to his trailer. Joe returned home immediately. Respondent's Post-Incident Conduct Respondent did not want anyone to know what she had done. She therefore initially told no one, not even Dr. Ellinger, about her "trashing" of Joe's trailer and her stealing and subsequently using his credit cards. While she remained quiet about her wrongdoing, she was not reluctant to complain to others about what she perceived to be Joe's harassment of her. On or about October 29, 1996, Respondent applied for and obtained in Palm Beach County Circuit Court an ex parte restraining order against Joe. The restraining order was later dismissed on November 12, 1996, after a hearing on the matter, in which both Joe and Respondent participated. On November 22, 1996, the police came to Forest Hill to speak with Respondent about the events of October 27, 1996. After being read her Miranda rights, Respondent agreed to give a statement to the police. At first, Respondent denied breaking into Joe's trailer. Not long thereafter, however, she retracted her denial and admitted to the police what she had done. Following the interview, the police advised Respondent that they would be seeking the issuance of a capias for her arrest. The police told Principal Hardy of their intention to effect Respondent's arrest. Principal Hardy thereupon directed Respondent not to return to the classroom and informed her that she was being reassigned (with pay) to her home until further notice. Later that day, Respondent saw Dr. Ellinger and for the first time told him about her destructive behavior at Joe's trailer during the early morning hours of October 27, 1996. (She subsequently, on December 16, 1996, told Dr. Ellinger about the credit cards she had stolen and then used.) The District Meeting and Meeting of the Professional Standards Committee Principal Hardy brought the matter of the police investigation of Respondent to the attention of the School District's Department of Employee Relations. The Department of Employee Relations determined that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was ultimately held on March 18, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and her attorney. At the meeting, Respondent admitted to breaking into Joe's trailer and "trashing" it and to stealing Joe's credit cards and using them to make purchases in excess of $300.00. In attempting to explain why she had engaged in such conduct, Respondent claimed that Joe had taunted, stalked and harassed her prior to the incident. In addition, she advised that she was under the care of a psychologist, Dr. Ellinger, whom, she stated, the School District could contact if it so desired. After hearing from Respondent, the School District representatives at the meeting determined that there was probable cause for the matter to be presented to the School District's Professional Standards Committee for its recommendation. After having considered the matter, the Professional Standards Committee recommended to the School District's Superintendent of Schools that action be initiated to terminate Respondent's employment with the School District. The Superintendent's Action On April 14, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between the School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon the following actions (criminal or otherwise): First, you admitted to breaking into a trailer and "trashing it." Second, you admitted to stealing a credit card and using it to make purchases in excess of $300.00. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code. Please be advised that I will recommend at the May 7, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective May 8, 1997, and that the termination of employment will become effective upon the expiration of fifteen days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The May 7, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (561) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. On April 22, 1997, the Superintendent of Schools executed a Petition for Dismissal, which contained the following "administrative charges" and "demand for relief": ADMINISTRATIVE CHARGES Petitioner, Dr. P. Kowal, alleges as follows: Respondent, Debora Woessner, admits to breaking into a trailer and "trashing it." Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00. The above-described conduct violated Section 231.36(1)(a), Florida Statutes (1995), the Respondent's contract, the Palm Beach County School Board's Rules and Regulations, and the Code of Ethics of the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Just cause exists for the requested relief, pursuant to Section 231.36(1)(a), Florida Statutes; Article II, Section M, of the collective bargaining agreement between the School District and the Palm Beach County Classroom Teachers Association; the School Board's Rules and Regulations; and Rule 6B- 4.009, Florida Administrative Code, in that Respondent has engaged in misconduct, criminal and otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft. DEMAND FOR RELIEF WHEREFORE, Petitioner, Dr. Joan P. Kowal, Superintendent of Schools, recommends that the School Board of Palm Beach County, Florida, immediately suspend Respondent, Debora Woessner, without further pay or benefits. The Petitioner recommends that the School Board, subsequent to providing the requisite notice, dismiss, the Respondent, Debora Woessner, from her employment as an instructor predicated upon the foregoing facts and legal authority. By letter dated April 28, 1997, which read as follows, Respondent, through her attorney, requested a hearing on the Superintendent of School's recommendation: Our office has been retained for the purpose of representing Ms. Debora Woessner before the School Board of Palm Beach County, Florida, with respect to the issues raised in the Superintendent's letter dated April 14, 1997, charging Ms. Woessner with misconduct. Ms. Woessner denies that there is any basis to support the Superintendent's recommendation for suspension without pay and contests the recommendation for her dismissal. Ms. Woessner requests that a hearing be conducted with respect to all issues raised by the charges described above and her defense to the charges, and requests such a hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before a hearing officer appointed by the Division of Administrative Hearings. I will speak on Ms. Woessner's behalf at the School Board meeting scheduled for May 7, 1997, when the Board will consider the propriety of the recommendation for suspension without pay and dismissal from employment. The Criminal Proceedings After the conclusion of the police investigation of the "trashing" of Joe's trailer and the theft and use of his credit cards, the matter was turned over to the State Attorney and Respondent was criminally charged (in Palm Beach County Circuit Court Case No. 96-13985CFA02) with one count of felony criminal mischief and one count of grand theft. Respondent entered a guilty/"best interest" plea to both counts. An Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in Palm Beach County Circuit Court Case No. 96-13985CFA02 on April 23, 1997. The order placed Respondent on probation for a period of five years "concurrent with each count." Among the conditions of her probation were that she have "no contact" with Joe and that she pay Joe restitution in an amount to be determined following a hearing on the matter. Such a hearing was held on May 16, 1997, after which an order was entered which provided as follows: THIS CAUSE having come before the Court for a restitution hearing and this Court having [pr]esided at said hearing on May 16, 1997, it is hereby ORDERED AND ADJUDGED that Defendant, Debora Woessner, pay to the victim, Joseph Scrivo, restitution in the amount of $30,238.92. Restitution is to be a condition of the Defendant's probation sentence and shall be paid monthly in the minimum amount of $10 per month, commencing July 1, 1997 and continuing until paid in full. Publicity Respondent's criminal conduct was widely publicized in the community. It was reported in the newspaper and received television coverage. One particularly aggressive television news reporter attempted to interview Forest Hill students on school grounds to obtain their reaction to Respondent's wrongdoing. After the reporter was directed to leave, he stationed himself across the street from the school, where he interviewed students on their way home following the end of the school day. In addition, someone distributed in the neighborhood surrounding Forest Hill fliers which denounced Respondent as being unfit to teach as a result of her criminal conduct. Impaired Effectiveness Teachers serve as authority figures and role models for their students. Respondent's ability to effectively serve as a positive role model for her students has been seriously impaired by her widely publicized criminal conduct. The May 7, 1997, School Board Meeting The Superintendent of Schools' recommendation regarding Respondent's future employment was discussed at the Palm Beach County School Board's May 7, 1997, meeting. At the May 7, 1997, meeting, Respondent's attorney argued that the School Board was prohibited by the Americans with Disabilities Act (ADA) from taking adverse action against Respondent and that it was required by the ADA to provide her with an accommodation. The School Board decided not to take any action on the Superintendent of School's recommendation regarding Respondent's future employment until it received further information concerning Respondent's entitlement to protection under the ADA. Correspondence Concerning Respondent's ADA Claim On May 9, 1997, the School District's General Counsel sent Respondent's attorney a letter, which read as follows: On Wednesday, May 7, 1997, you appeared before the board on behalf of Debora Woessner. That evening you advised that Ms. Woessner had sought an ADA accommodation, and that her rights were violated due to the District's failure to accommodate her. As of today's date, we have had no information regarding this employee's request for an accommodation. No later than Monday, May 12, 1997, we would request a letter via facsimile to the attention of Dianne Howard, our Risk Manager, at (561) 434-8103 with regard to the following: Please outline the nature of your client's disability. Please outline how this disability affects her major life activity. Please advise as to the accommodation she is seeking. This information is critical for the District's consideration of your request. The consideration must be arrived on or before May 16, 1997. If this information is not received by Monday, and the meeting cannot be scheduled before May 16, 1997, th[e]n termination which was predicated on criminal activity, admitted by your client, will proceed at the next regularly scheduled Board meeting on May 21, 1997. Respondent's attorney responded to this letter from the School District's General Counsel by letter dated May 12, 1997, which read as follows: I am in receipt of your letter of May 9, 1997 regarding Debora Woessner. For clarification, my statements to the Board indicated that Ms. Woessner was requesting, through her attorney, an accommodation. I further stated that Ms. Woessner was in possession of School Board Policy 3.06, and that the School Board should allow the District's ADA process to run its course before making a decision regarding Ms. Woessner's termination. I did not state that Ms. Woessner's rights had been violated. I stated that the Board should delay acting on the recommendation so that Ms. Woessner's rights would not be violated. Regarding your statement that the District has no information regarding Ms. Woessner's request for an accommodation, I stated at the meeting that (1) Ms. Woessner has been diagnosed with a psychiatric disability specifically defined by the DSM IV, (2) this disability affected a major life activity, i.e., interacting with people, (3) the actions for which the Superintendent recommended discipline for Ms. Woessner were directly related to her disability, (4) my client was directly in the process of getting information required by the district from the individual treating her for her disability, and that the district would be informed as to what accommodation was appropriate. Regarding the request contained in the letter, I spoke with Darren Edwards of your office on the afternoon of May 9, 1997 and informed him that Ms. Woessner would provide the requested information as early as possible. As I have previously informed you, and as I informed Mr. Edwards during the aforementioned conversation, Ms. Woessner obtained a copy of School Board Policy 3.06, and is in the process of complying with its dictates. Because of the nature of the information required by the Policy and the strictness of the Policy, it is not possible for Ms. Woessner to comply with your request that she have all information you requested in Ms. Howard's office by this afternoon. I would further note that this is the first time in the many instances in which I have dealt with the Palm Beach County School District on ADA accommodation questions that a deadline has been imposed on an employee. I have checked Policy 3.06 and can find no mention of a deadline within which an employee must provide the requested information. In short, it appears that Ms. Woessner has been singled out for special treatment. I consider this to be not only inappropriate, but possibly unlawful. I would also point out that your request implies that the information requested should come from me, Ms. Woessner's attorney, and not a mental health counselor. In short, it is my client's intention to comply with the District's ADA policy as quickly as possible. If you have any questions regarding this matter, please do not hesitate to contact my office. In a letter sent to Respondent's attorney on May 12, 1997, the School District's General Counsel acknowledged receipt of his May 12, 1997, letter and further stated the following: Ms. Woessner was reassigned to her home with pay in November, 1996. Over the past six months, and during several conferences with Ms. Woessner, there has never been any mention of her alleged disability or request for an accommodation. The principal confirmed that during the last nine years, Ms. Woessner never indicated she suffered any mental disability. Certainly no request for an accommodation was ever made. However, Ms. Woessner was very aware of our ADA policy since she had requested on prior occasions, ADA accommodations for her allergies. Irrespective of the ADA claim which has only recently been made, Ms. Woessner acknowledged her actions which comprise the felony charges against her. After admitting to the charges, termination proceedings were commenced. It was only at the eleventh hour, when the Board was asked to proceed with her termination of employment, did you state that Ms. Woessner was suffering from a disability. Although the administration sought termination related to Ms. Woessner's admitted criminal behavior, we agreed to consider your request on your client's behalf. We asked you to specify the nature of the disability, how it affected a major life activity, and the specific accommodation she was seeking. Your letter to the District indicates that this information will not be provided in the time frame requested. As a matter of law and in accordance with the very same case you cited (Hindman v. GTE), the District has never been made aware of the disability allegedly suffered by your client at the time of the incident, at the District meeting, or when she was notified of the termination proceedings. There was no request for an accommodation which specifies the accommodation, as required by the ADA either prior to her criminal behavior, nor after she was notified in April of the termination proceedings. The District will proceed with the termination proceedings on May 21, 1997. On May 21, 1997, ten to fifteen minutes before the start of the School Board meeting scheduled for that day, Respondent's attorney handed the School District's Chief Personnel Officer a letter addressed to Diane Howard, the School District's Director of Employee Benefits and Risk Management, which read as follows: Enclosed please find a copy of an affidavit executed by Dr. Mark Ellinger. Dr. Ellinger is Debora Woessner's psychologist and has provided the affidavit to assist Ms. Woessner in obtaining an accommodation for a disability pursuant to School Board Policy 3.06. Ms. Woessner is a teacher assigned to Forest Hill Elementary School, and holds a Professional Services Contract. Her Social Security Number is . . . . As you can see from the Affidavit, Ms. Woessner has had some recent difficulties related to her disability, and has been recommended for suspension without pay and termination by the District. Ms. Woessner's position, which is supported by her Doctor, is that the actions for which she is being terminated are directly related to her disability and that she can continue her teaching position if she is provided with a reasonable accommodation. Ms. Woessner has already provided her doctors with releases so that the School Board can obtain her medical records. Dr. Ellinger's address and telephone number are as follows: . . . . I will provide you with similar information for Dr. Yetz in the near future. Please keep in mind that this correspondence, and the attached affidavit, are confidential pursuant to both the Americans with Disabilities Act and Florida Statutes. As such, copies may not be provided to the press, or any individual not involved with making a determination of whether Ms. Woessner is entitled to an accommodation. If you have any questions regarding the matter covered in this letter or the affidavit, please do not hesitate to contact my office. The affidavit of Dr. Ellinger, which was appended to letter, read as follows: I am a clinical psychologist working in Palm Beach County, and have been treating Debora Woessner since August 15, 1994, for mood and substance abuse problems. In addition to being treated by me, Ms. Woessner sees Dr. Yetz, a [p]sychiatrist, for medication. The specific diagnos[e]s for Ms. Woessner are Depressive Disorder, not otherwise specified (311.00 DSM IV) and Cannabis Dependence (304.30, DSM IV) with sustained partial remission.4 The medication Ms. Woessner takes significantly reduces the severity of her disorder.5 Ms. Woessner's disorders are directly related to her to having grown up in a situation where she was physically and psychologically abused, which later manifested itself in psychiatric problems such as depression, substance abuse, and relationship problems. Ms. Woessner's disorders interfere with her ability to interact with others, and impact her work. More specifically, Ms. Woessner's disorder, particularly in the absence of the medication prescribed by her psychiatrist, significantly restricts her ability to interact with others as compared to the average person in the general population. Ms. Woessner was involved in an incident in November of 1996 where she damaged a man's trailer and used his credit cards to make purchases without his assent. Had it not been for her abusive childhood and its subsequent psychiatric illness, Ms. Woessner would not have acted out in such an aggressive manner. Her psychological problems directly caused and are related to the incident that occurred in November. It is highly unlikely that Ms. Woessner will repeat such actions in the future.6 Ms. Woessner is a good, dedicated and caring professional who genuinely wants the best for her students. Her profession has always given a sense of pride, meaning and structure to her life. Ms. Woessner loves her work, which is a central part of her identity. Ms. Woessner has been a hard worker in psychotherapy and has with tenacity chipped away at her various problems with success. She has been consistent in therapy and follows up on recommendations to better herself and resolve her problems.7 Ms. Woessner does not represent a threat to herself or anyone and her problems are treatable. Ms. Woessner should receive a leave of absence until the beginning of the 1997-1998 school year so that she can resolve her problems. During this time, Ms. Woessner will be treated for her problems and will undergo testing to ensure that her problems have been resolved.8 It was not until September of 1997 that Howard received the May 21, 1997, letter from Respondent's attorney's and the attached affidavit of Dr. Ellinger. Upon receiving these documents, she prepared and then sent to Respondent's attorney the following written response: I am in receipt of your letter dated May 21, 1997 and directed to my attention. I am sorry for the delay in response, however, I just received this letter on September 17. It came to my attention through our Legal Counsel as they were preparing for a hearing. I am sorry I never received this before, but I will try to answer it now. Your letter indicates you are asking for an accommodation for Debora Woessner. You are providing an affidavit from a clinical psychologist indicating that Ms. Woessner suffers from depressive disorder and cannabis dependence. You do not state a specific type of reasonable accommodation in your letter, however, the affidavit provided by Mark Ellinger, the Clinical Psychologist, indicates that allowing Ms. Woessner a leave of absence for the rest of the school year would give her time to treat [her] for her problems. While a depressive disorder may be considered a disability under the ADA, and a leave of absence can be an acceptable accommodation, we do not usually require that leave requests go through as an ADA accommodation. The School District leave policy is so generous that we would allow her to have a medical leave without going through the ADA process. I do understand that Ms. Woessner has since been terminated from the School District and that the first time that the ADA accommodation request was brought up was at a School Board meeting when the School Board was considering her termination. Apparently your client was terminated for misconduct, specifically destruction of property, breaking and entering and theft. Even if I could consider making an accommodation for your client's problems, I could never accommodate destruction of property, breaking and entering and theft. We can accommodate time to take the medication, other things like leave of absence, but not improper behavior. I am enclosing a copy of the new School Board policy with a form that should be completed if you think you have anything else to offer that could be considered. I do believe that the time to bring up an accommodation request would have been prior to a termination hearing. The School Board's Action Contrary to what Howard had stated in her letter, Respondent had not been terminated by the School Board. The School Board had merely suspended Respondent without pay (effective following the end of the 1996-1997 school year) pending the outcome of this dismissal proceeding. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent is a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract). Article I, Section D, of the CTA Contract addresses the subject of "management rights." It provides as follows: The [School] Board hereby retains and reserves unto itself, the Superintendent, the principals and other administrative personnel of the School System, all powers, rights, authority, duties and responsibilities, and the exercise thereof, as conferred upon and vested in them by the Constitution and the Law and the Regulations of the United States and the State of Florida, and the policies of the School Board of Palm Beach County, in keeping with the provisions of this Agreement. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provides as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations,9 progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998.
The Issue The issue is whether Respondent School Board of Bay County (the “School Board”) has good cause under Section 1012.22(1)(a)2., Florida Statutes (2006), to reject the recommendation of Petitioner James E. McCalister, Sr., Superintendent of the Bay County School District (the “Superintendent”), to transfer the Intervenor Larry Bolinger (“Bolinger”) from the position of principal of Bay High School (“Bay High”) to the position of principal of Jinks Middle School (“Jinks”).
Findings Of Fact The Superintendent is the duly elected superintendent of the Bay County School District. He is serving his second consecutive term in that capacity. The School Board consists of five duly elected members: Thelma Rohan, Ron Danzey, Johnny Brock, Jon McFatter, and Donna Allen. Bolinger is an employee and former superintendent of the Bay County School District. The Superintendent defeated Bolinger for the superintendent’s office in the 2000 general election. Bolinger was principal at Merritt Brown Middle School (Merritt Brown) during the 2004-2005 school year. He was principal at Bay High for the 2005-2006 school year. His proposed reassignment from Bay High to Jinks for the 2006-2007 school year is the subject of this proceeding. Bay High, Jinks, and Merritt Brown are located in Panama City, Bay County, Florida. Florida has an “A+ Plan for Education” that grades schools based on student performance. The school grade is determined by student scores on the Florida Comprehensive Assessment Test (“FCAT”). Fred Goodwin was the principal at Bay High for 27 years. Mr. Goodwin’s final year at Bay High was the 2004-2005 school year. He retired after Bay High received a school grade of “D” for two consecutive years. Bay High’s 2004-2005 school score improved by 28 points over the score received during the previous year. The school would have received a grade of “C” for the 2004-2005 school term but for the failure of more than 50 percent of the lowest scoring 25 percent of Bay High’s students (“the lowest quartile”) to make gains on the FCAT exam. Relevant to the subject of Bay High’s performance on the FCAT in recent years, the School Board opened Arnold High School (“Arnold”) on Panama City Beach in 1998. The new high school resulted in a significant reduction in Bay High’s student population because all of the beach students previously had attended Bay High. In order to increase the student population at Bay High and the school’s academic performance, the School Board started a Magnet program at Bay High. Bay High was given $250,000 through a grant to get the Magnet program started. The School Board also provided Bay High with extra teaching units for every year of the Magnet program’s existence. Along with the Magnet program, the Advanced International Certificate of Education (“AICE”) program was initiated at Bay High. One purpose of starting the AICE program at Bay High was to attract high-performing students. Despite such efforts, Bay High received a school score of “D” during the 2003-2004 and 2004-2005 school years. In the years prior to Goodwin’s retirement, Bay High experienced significant problems in areas other than academics. The problems included, but were not limited to the following: (a) the school grounds and facilities were deplorable; (b) many students wandered campus during class time unattended; (c) teacher morale was low; (d) administrators, including Goodwin, were not visible on campus or at school events; (e) students and teachers were disciplined inconsistently; and (f) instructional class time was interrupted for nonacademic events. Knowing that the principal position at Bay high would be vacant after the 2004-2005 school year, the Superintendent advertised the position. Bolinger did not apply to fill the position. The general practice is that during the advertising process, some applicants for a position are screened out simply based upon an assessment of the application. A committee then selects and interviews five applicants. After the interviews, the committee sends the Superintendent the names of three applicants for the position advertised. In the case of the vacancy for principal at Bay High, the Superintendent did not select any of the top three applicants. Instead, he placed the applicants at other schools. On June 21, 2005, the Superintendent contacted Bolinger. The Superintendent requested Bolinger to meet at the Superintendent’s office. At the meeting, the Superintendent offered the Bay High principal position to Bolinger. The Superintendent’s offer did not foreclose Bolinger’s option to remain as principal at Merritt Brown. In the course of their discussion regarding the Bay High position, Bolinger told the Superintendent that he had four years left in the Deferred Retirement Option Program (“DROP”). Bolinger stated that he would take the job at Bay High with the understanding that he would be the Bay High principal for the remaining four years before his retirement.1/ The Superintendent agreed that Bolinger would be allowed to stay at Bay High until his time in the DROP program was complete. Bollinger also told the Superintendent that if he was going to Bay High as principal, he must have two assistant principals. The Superintendent agreed to this condition. Randall McElheney and William Harrison are businessmen in Panama City, Florida, with close connections to Bay High as alums, parents, and volunteers. For the 2005-2006 school year, Mr. McElheney and Mr. Harrison served as business partners in the Partnership to Advance School Success (PASS) program. The PASS program is a cooperative effort between the State, the School Board, Bay High, and the business partner to improve the academic status of individual schools. Prior to the June 21, 2005, meeting between the Superintendent and Bolinger, the Superintendent told Mr. McElheney that there was only one person that could turn Bay High around. That person was Bolinger. After Bolinger accepted the position at Bay High, the Superintendent contacted several other School Board members to inform them of his decision. The Superintendent told Mr. Danzey that Bolinger was the one person in the school district that could lead Bay High. The Superintendent told Ms. Allen that Bolinger was the best person for the Bay High job. Mr. McFatter understood the Superintendent to believe that there was no one else in the district other than Bolinger who could handle the Bay High job. All of the School Board members supported the Superintendent’s decision to transfer Bolinger to Bay High. Not everyone in the community agreed with the Superintendent’s decision. The Superintendent knew that some people, unidentified here, opposed the transfer in part for political reasons. The Superintendent also knew that Bolinger would “ruffle some feathers” and upset certain individuals as he made needed changes at Bay High. On or about June 23, 2005, the Superintendent transferred Bolinger from Merritt Brown to Bay High for the 2005-2006 school year. Bolinger started working at Bay High that same day. The School Board subsequently voted unanimously to approve the reassignment. Bolinger signed a one-year written contract with the School Board for the 2005-2006 school year. The written contract provides as follows in pertinent part: THIS CONTRACT entered into between THE SCHOOL BOARD OF BAY COUNTY, FLORIDA, party of the first part, hereinafter called “the School Board,” and Larry Bolinger (0061), party of the second part, hereinafter called “the Employee.” * * * The School Board agrees to employ the Employee in a position of PRINCIPAL for a period of 12 calendar months beginning July 1, 2005 (same being hereinafter referred to as the “employment period”) . . . . * * * 10. It is expressly understood and agreed by and between the parties hereto . . . that neither the Employee nor the School Board owes any further contractual obligation to the other after the last day of the employment period. The Superintendent has never recommended that the School Board contract with administrative personnel in excess of one year. During his first year at Bay High, Bolinger was able to resolve many of the school’s past problems. With the help of the PASS program business partners, the grounds and facilities were cleaned. The business partners also worked with Bolinger to implement incentive programs to motivate student academic achievement. Attendance improved and students were in class during instructional time. Bolinger established clear definitive roles for each administrator. Teacher and staff morale increased as a clear chain of command and written policies eliminated favoritism. Student discipline became consistent and non-discriminatory. Bolinger and other administrators were visible on campus and at school events. All administrators were accessible to faculty, students, and parents. The faculty was included in decisions regarding the school. Most important, during the 2005-2006 school year, Bay High improved its school score from a “D” to a “C”. The school was eligible to receive a score of “B” on the FCAT, with a numeric score that was 11 points higher than the score received in 2004-2005. However, because less than 50 percent of the lowest quartile made adequate gains on the test, Bay High received a “C”. Beginning around the start of 2006, Bolinger heard rumors that he was going to be removed from his position because he had ruffled some feathers at Bay High. Certain individuals had complained to the Superintendent when they became upset with Bolinger for changing the status quo. Through out the year, Bolinger frequently consulted with the Superintendent about problems at the school. The Superintendent always reassured Bolinger that he was “doing the right thing” and needed to “keep on track.” The Superintendent encouraged Bolinger to be sensitive to students, teachers, and staff, but to keep his focus on improving student performance, especially the performance of the lowest quartile. In May 2006, the Superintendent met with Bolinger. At the meeting, the Superintendent stated that he would recommend Bolinger back as a principal, but not at Bay High. Bolinger stated that he felt betrayed because he had been loyal to the Superintendent. The Superintendent stated that he did not see it that way. The Superintendent never gave Bolinger any other reason for the decision. Once the transfer became public knowledge, the Superintendent and School Board members received e-mails from Bay High students, staff, parents, and community members. A significant majority of these e-mails discussed the improvements that Bay High made under Bolinger’s leadership. They expressed support for his remaining at Bay High. School Board members also received telephone calls from the public for and against Bolinger’s impending transfer from Bay High. The School Board members and Bay High’s business partners questioned the Superintendent’s decision to remove Bolinger as principal at Bay High. The Superintendent would not give anyone a reason, except to say to a couple of people, “That man is going to do what I tell him to do.” Mr. McElheney, one of Bay High’s business partners, funded a radio and sign campaign advocating that Bolinger remain at Bay High. The radio messages urged the public to attend the School Board meeting on May 30, 2006. After speaking with the School Board members, the Superintendent instituted a teacher hiring freeze. The hiring freeze allowed teachers to interview for positions throughout the district but prohibited anyone from being hired. The Superintendent did not want a teacher being hired at a school expecting certain individuals to be the administrators and then change his or her mind after an administrative change. At the May 30, 2006, School Board meeting, the Superintendent recommended the retention of Bolinger, and several other principals and assistant principals, as employees of the School District for the 2006-2007 school year. The Superintendent’s recommendation did not identify the particular school to which Bolinger, or any other principal or assistant principal, would be assigned. This was a departure from the custom of making administrative recommendations, including the school assignment for each administrator. At the May 30, 2006, meeting, the School Board allowed for public comment. At times growing heated, 47 people, consisting of students, parents, teachers, staff, and community members, spoke at the meeting. Again, a significant majority spoke positively of Bolinger and the difference he was making at Bay High. Many people requested that the Superintendent reconsider his decision. After the public comment portion of the meeting, the Superintendent stated that he did not intend to reconsider his decision about transferring Bolinger and would not give a reason for his decision. The School Board then unanimously voted to approve the recommendations as submitted without school assignments and with the understanding that no principals or administrators would be transferred from their current assignments without School Board approval. The School Board met again on June 28, 2006. At that time, the Superintendent made a recommendation to the School Board to transfer five administrators, one of which was the transfer of Bolinger to the position of principal at Jinks. Once again, the Superintendent refused to give the School Board a reason for his decision to transfer Bolinger. The Superintendent would not reveal the name of the person who would replace Bolinger as principal at Bay High. Mr. McFatter made the following motion at the June 28, 2006 meeting: A transfer of the principal from Bay High School this close to the beginning of the school year, coupled with the Superintendent’s hiring freeze, will in a number of ways adversely affect the student and staff of Bay High School and will severely disrupt the operation of the school for the upcoming year. Given the history of Bay High School, it is particularly crucial that this not occur. It is a school that has experienced two “D” school years, and under Mr. Bolinger’s leadership, started down the right road to recovery becoming a “C” school for the 2005-2006 school year. This eleventh hour disruptive recommendation will have an adverse effect on student achievement at Bay High School for the 06-07 school year. Based upon these findings of good cause, I move that the School Board reject the Superintendent’s recommendation that Larry Bolinger be laterally moved from the principal-ship at Bay High to the principal-ship at Jinks Middle School. The School Board unanimously voted in favor of the motion and to reject the Superintendent’s recommendation to transfer Bolinger. This was the first time Mr. Brock, Ms. Allen, and Mr. McFatter had ever voted to reject an administrative personnel recommendation made by any school superintendent. Mr. Brock has served on the School Board for 10 years, Ms. Allen for four years, and Mr. McFatter for two years. Ms. Rohan voted to reject the recommended transfer because of her belief that the Superintendent breached his oral contract with Bolinger regarding Bolinger’s length of stay as principal of Bay High. At the meeting, Mr. McFatter voted to reject the recommended transfer of Bolinger for the following reasons: (a) the transfer would have occurred too close to the beginning of the school year and that, coupled with the hiring freeze, would adversely affect the students and staff at Bay High; (b) the transfer would interrupt operations at the school; and (c) improvement was made at Bay High under Bolinger’s leadership after it experienced two “D” years. During the hearing, Mr. McFatter stated that he voted to reject the recommendation because “everything [at Bay High] was positive in regard to the kids and their achievements. And to derail it without explanation was unacceptable and to my mind was good cause.” At the June 28, 2006, meeting, Mr. Danzey voted to reject the Superintendent’s recommendation to transfer Bolinger because there were improvements at Bay High under Bolinger. Mr. Danzey thought it was too soon for another change in principals at Bay High and that the leadership at the school needed to stay in place. Ms. Allen voted to reject the recommended transfer of Bolinger because keeping the leadership at Bay High was best for the future of the school, its students, and faculty. Ms. Allen did not believe that anyone but Bolinger could implement his plan for improvement of Bay High as well as Bolinger himself. Mr. Brock voted to reject the Superintendent’s recommended transfer of Bolinger because improvements were being made at Bay High, students were feeling better about themselves, and removing Bolinger would harm the students. Mr. Brock stated that the Superintendent’s action was the equivalent of “pull[ing] the carpet” out from under the Bay High students. At some point in time after recommending the transfer of Bolinger, the Superintendent proceeded to advertise the principal’s position at Bay High as open for the 2006-2007 school year. During his deposition and at the hearing, the Superintendent revealed for the first time that he considered two applicants to be qualified for the Bay High job: Bill Payne and Mackie Owens. At the time of the rejection of Bolinger’s recommended transfer, the School Board members were not aware that the Superintendent might consider one of these two individuals to be the principal of Bay High. Payne had applied for the same position in 2005 and had not been selected by the Superintendent. For the 2005/2006 school term, Payne served as an assistant principal at Bay High under Bolinger. If the School Board had approved the recommended transfer of Bolinger, the School Board members would not have had an opportunity to consider the assignment of a Bay High principal until the July School Board meeting. Due to the School Board’s rejection of the Superintendent’s recommended transfer, Bolinger remains principal of Bay High. The Superintendent has not revealed the name of the person he would recommend to be principal at Bay High should Bolinger be transferred. During his deposition and during the hearing, the Superintendent testified that there were multiple factors that precipitated his decision to transfer Bolinger. First, there was an incident that involved the announcing of Bay High’s Top ten seniors for 2006. In late April or early May 2006, the Superintendent requested that Bolinger delay announcing the ten seniors with the highest cumulative grade point average because one student erroneously believed that he should be valedictorian at Bay High. The student’s parents wanted an opportunity to appeal the issue to the School Board on the following Wednesday. The Superintendent and Bolinger agreed that the announcement would not be made until the end of the week after the School Board meeting. On Wednesday, the School Board listened to the parents’ appeal. The School Board took no action to change the decision of the school and the Superintendent that the student academically ranked third behind co-valedictorians. That evening after the School Board meeting, Ms. Rohan, Chairperson of the School Board, went to Bay High where some teachers and staff members were planning an awards ceremony for Thursday morning. Learning that the decision was final, the teachers requested permission from Bollinger to include the Top 10 announcement in the Thursday awards program. Bolinger agreed to make the Top 10 announcement on Thursday. He made this decision because he thought the issue regarding the identity of the valeditorian was resolved and because some of the Top 10 students were not going to be in school on Friday. On Thursday after the announcement, the Superintendent received a call from a parent of the disappointed student. The parent was upset because Bay High announced the Top 10 on Thursday instead of waiting until Friday as anticipated by the parent. The Superintendent contacted Bolinger to inquire about the decision to make the announcement on Thursday. Bollinger explained that it was just a spur of the moment decision. Bolinger offered to apologize to the student’s parents over any misunderstanding about the timing of the announcement. Shortly thereafter, Ms. Rohan informed the Superintendent that she had been to Bay High on Wednesday evening planning for the Top 10 announcement the next day. Ms. Rohan’s statement led the Superintendent to erroneously believe that Bolinger had lied when he said the announcement was a spur of the moment decision. The incident involving the Top 10 announcement was the biggest factor that the Superintendent considered when deciding to transfer Bolinger. If Bolinger had waited until Friday to make the academic awards, the Superintendent probably would have recommended that Bolinger return to Bay High for additional years. Another factor that motivated the Superintendent to transfer Bolinger involved a facilities improvement request from Bay High, which the Superintendent rejected. The Superintendent erroneously believed that Bolinger sent parents to pressure him to change his mind. In April 2006, Bay High’s PASS business partners spoke to the Superintendent about some needed facility improvements at Bay High. The Superintendent agreed to send the district’s Director of Facilities to review a list of suggested needs. One of the improvements was a new baseball dugout, with lockers and a batting cage, as requested by Bay High’s baseball boosters. The Superintendent asked the business partners to follow up with him about the dugout issue in the future. Bolinger, as principal of Bay High, approved the facilities request before sending it to the Superintendent. The Superintendent rejected any request for improvements that were not academically related. Bolinger did not request that the business partners pressure the Superintendent about his rejection of any part of the facilities request, much less a baseball dugout. Bay High’s business partners had a follow-up appointment with the Superintendent on the morning that Bolinger’s recommended transfer became public knowledge. The business partners intended to discuss alternative means of funding the construction of the new dugout. However, the sole issue addressed at the meeting was Bolinger’s transfer. There was no pressure applied to the Superintendent about his rejection of any improvement at Bay High. A third factor that the Superintendent considered was that he thought the district would be better served if Bolinger served as a middle school principal. According to the Superintendent, Bolinger had been very successful as principal at Merritt-Brown. The Superintendent knew Bolinger was a good disciplinarian and believed he could solve some alleged problems at Jinks. However, the Superintendent subsequently had a conversation with the principal at Jinks which resolved any such problems. During the hearing, the Superintendent presented the expert testimony of William Montford, former Leon County School Superintendent and currently Executive Director of Florida Association of District School Superintendents. Mr. Montford’s expert testimony is accepted, limited to his experience as a school superintendent. A school superintendent serves the role of Chief Executive Officer of the school district. For that reason, a superintendent needs control over district personnel and the discretion regarding the placement of those employees. In making those decisions, a superintendent should consider the input from school board members, teachers, parents, and student. Ultimately, it is the superintendent’s responsibility to recommend what he or she believes is best – in terms of personnel placement - for the entire school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a final order rejecting the Superintendent’s recommendation to transfer Larry Bolinger. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd of January, 2007.
The Issue The issue for consideration in this hearing is whether Respondent should be dismissed from employment as a non-instructional employee by the School Board of Lake County based on his arrest on February 26, 1989 for sexual battery on a child 12 years old.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Anthony Louis Young, was employed by the Lake County School District as a custodian at Rimes Elementary School. The School Board of Lake County is the agency responsible for the administration of public primary and secondary education in Lake County. Respondent had been employed as custodian at Rimes since 1983. This was a non-instructional position. In addition to his duties as custodian, he also had signed a vandal trailer contract under which he occupied, with his family, free of charge, a house trailer located on the school campus. The trailer and all utilities except telephone were furnished without charge to the Respondent. His obligation was to provide himself with a telephone and to make visual checks of the school buildings from time to time when school was not in session. Mr. Young did not receive any salary under the terms of the trailer contract. On February 13, 1989, Julia Young, Respondent's wife and mother by a different father of Nina Walker, age 12, discovered a pair of bloody underpants belonging to her daughter and became suspicious of the cause. She made an appointment with a doctor at the Public Health Service to have her daughter examined but did not keep it, nor did she provide any urine specimens from her daughter for testing. Finally, on or about February 26, 1989, she asked her daughter about the pants and in response was told, by Nina, that her stepfather, Respondent, had come into her room while Ms. Young was gone and had "messed" with her. Nina did not go into detail at this time, but as a result, that same day Ms. Young called the Sheriff's Office to report Respondent for alleged sexual battery on Nina. She had not discussed the matter with Respondent before making the call. When the Sheriff's Deputies came to her home, she told them the story that Nina had told her about the abuse which had allegedly taken place on a previous date. Ms. Young's report was made to Deputy Pallitto who, upon hearing the story, notified the representative from DHRS and then interviewed Nina. In her statement made to Pallitto, Nina told the following story: Respondent had picked her up at her grandmother's house on February 13, 1989 and taken her home. Instead of dropping her off as he usually did, he came inside, followed her into her room, and began touching her on her breasts and vagina. When Nina stated she would tell her mother, Respondent allegedly said he would tell her that Nina had used profanity. He then reportedly forced her onto the bed and told her to take off her clothes. He went into the living room and put some music on to play and then returned and undressed himself. He put what apparently was a condom on and told Nina to open her legs. He then attempted to insert his penis into her vagina and it hurt. As he was trying to do this, Nina's brother came in the back door and this caused Respondent to get off her and leave the room. Deputy Pallitto asked Nina to write out her statement, which she did. After completing her affidavit, she was taken to a doctor for a physical examination. Based on her oral statement, her affidavit which was consistent therewith, and the conclusion of the doctor that her physical condition was consistent with a penetration of her vagina by something, Respondent was arrested. During the period that Nina was waiting to see the doctor, she was again asked to tell her story and at this point, told much the same story as she had previously told, both orally and in writing. Several days later, on February 28, 1989, Deputy Pallitto was contacted by the Assistant State's Attorney who advised him that earlier that day Nina, along with her mother and grandmother, had come to his office and recanted her previous story. At Pallitto's request, she wrote out another affidavit which, in his opinion, was much more difficult for her to do than had been the original. In her second affidavit, Nina indicated she recanted because Respondent was not guilty of what she had alleged and she did not want to see an innocent man go to prison. In the second affidavit, Nina indicated her first story was a lie and claimed that when she attempted to tell the truth at first, she was pressured to make a statement implicating the Respondent. It was not indicated who "pressured" her. Ms. Williams arrived at Respondent's house trailer while Nina was writing out her original affidavit, and when she read it, found it to be consistent with what she had heard directly from Nina and from her mother. Ms. Williams took Nina to the doctor because she wanted Nina to have a vaginal exam as soon as possible to see if penetration could be determined. After the doctor indicated that Nina's condition was consistent with penetration by something, she took both Nina and Nina's brother and sheltered them for a month. At the end of that period, the boy was returned home, but Nina was sent to stay with an aunt in Ft. Lauderdale at the request of Ms. Young. This was done after Nina had recanted her original accusation, but according to Ms. Williams, this is not at all unusual. Ms. Williams also indicated that Ms. Young had seen love letter type notes written to Respondent by children from the school. These were not presented because, Ms. Young indicates, she tore them up and threw them away. Ms. Williams alleges that Ms. Young indicated in her initial interview that Nina was not the sort of child who would make up stories. In fact, Ms. Williams' investigation, and the testimony of Ms. Witter, one of Nina's teachers who is familiar with Nina's reputation at school, confirms this. At the hearing, however, both Ms. Young and Ms. Walker, the grandmother, indicated Nina is as likely to tell a lie as she is to tell the truth, and though she had not been in disciplinary difficulties at school before, she has been somewhat promiscuous on at least one occasion with a male cousin. The investigator from the Department of Health and Rehabilitative Services who, investigated this matter filed her report indicating the situation as a "confirmed" case of child abuse. Mr. Young was thereafter notified of this classification by letter and did not take any action to contest it. It is the policy of the School Board not to hire individuals who are charged with child abuse and placed in the abuse registry. Even if found innocent of sexual abuse on a minor, an individual would not be hired for a custodial position. Two weeks after Respondent was arrested, the State's Attorney decided not to prosecute and Respondent was released from jail. On the day of his release, a letter advising him that he had been suspended with pay pending a recommendation for disciplinary dismissal by the Board was delivered to him by Mr. Galbraith, the then Assistant Superintendent. This letter advised Respondent he was entitled to an informal conference after the Superintendent had conducted an investigation into the allegations. The investigation was conducted and Respondent requested an informal conference which was scheduled for March 23, 1989. However, before that conference could take place, the Board was advised of a decision of the 5th District Court Of Appeals which afforded Respondent a due process hearing under Chapter 120, Florida Statutes. Respondent was so advised and requested the formal hearing, and as a result, the dismissal action was held in abeyance pending the formal hearing. Before the formal hearing could be held, however, Respondent's one year contract with the Board expired and, though he had been rehired almost automatically every year since he started with the Board in 1983, on this occasion, because of the allegations against him, Mr. Wolf, the Principal at Rimes, declined to offer him a contract for the following year. At about the same time, the Board advised him to vacate the trailer he occupied on campus. Consequently, no disciplinary dismissal has ever been executed. Shortly after his release from jail in March, 1989, Mr. Young left the area and secured alternative employment in Orlando. He has never requested that he be reinstated after the charges against him were dropped. His sole contest of the Board's action is the request for hearing on the dismissal action. While working with the Board, Respondent was paid approximately $520.00 every two weeks. On or about April 1, 1989, he secured work with a firm in Orlando and has been making $6.25 an hour working 50 hours per week, with overtime for all hours over 40. Though Respondent previously claimed he did not want his job back, he now claims he does, but in light of his current income and the fact that he is currently working in an area away from the locus of the incident, it is found that his stated desire for reinstatement is not sincere. Once Respondent was arrested his principal, Mr. Wolf, recommended to the Board that he be dismissed. School Board Policy 4.06(1), dealing with non- instructional personnel, provides that a staff member may be discharged during his term of office for "good and sufficient reasons". Both Mr. Wolf and Mr. Galbraith advised Dr. Sanders that under the circumstances of this case, wherein an employee who deals on a regular basis with young children is arrested for an offense which, as here, involves allegations of sexual misconduct with a child, the interests of the children and the school system would be best served by his dismissal.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Anthony Louis Young, be awarded back pay for the period from the date the charges against him were dismissed to the end of the 1988 - 1989 school year. RECOMMENDED this 4th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2620 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case. FOR THE PETITIONER: None submitted FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 17. Accepted. Accepted and incorporated herein. Accepted. - 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. COPIES FURNISHED: Stephen W. Johnson, Esquire 100 West Main Street Leesburg, Florida Dr. Thomas E. Sanders, Superintendent The School Board of Lake County, Florida 34749 201 W. Burleigh Blvd. Tavares, Florida 32778 Harry L. Lamb, Jr., Esquire 312 West 1st Street, Suite 605 Sanford Florida 32771 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher without pay for three days.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. The School Board hired Respondent on July 1, 2013. At all times material hereto, Respondent was employed by the School Board as a physical education teacher at Lauderhill 6-12 Middle School. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. The conduct giving rise to the School Board’s proposed three-day suspension of Respondent occurred on April 18, 2018, during the 2017-2018 school year. On April 18, 2018, R.D., a female 12th grade student, entered the school gym, along with fellow high school students E.P. and J.B., in an effort to take pictures of Respondent and Coach Jessica Bentle ("Bentle") for the school’s yearbook. At the time, Respondent, Bentle, and another physical education teacher, Mr. Drummer, were supervising a physical education class, with dozens of students participating in various physical education activities in the gym. Neither R.D., E.P., nor J.B. were students in the physical education class. Rather, R.D., E.P., and J.B. entered the gym during Respondent’s and Bentle’s physical education class for the sole purpose of taking their pictures for the school’s yearbook. When R.D. went to the gym on April 18, 2018, she was aware that Respondent and Bentle did not want their pictures taken because they had declined previous requests to have their pictures taken. Nevertheless, on April 18, 2018, R.D. again requested to take pictures of Respondent and Bentle for the school’s yearbook, and both Respondent and Bentle declined. Despite Respondent’s repeated denials of requests not to have his picture taken, R.D. waited until Respondent was not looking and took his picture anyway with her cell phone. According to R.D., when Respondent realized she had taken his picture, he became angry and started walking toward her to confiscate her cell phone. R.D. did not want to give Respondent her cell phone because it contained the picture of him she knew she should not have taken. In an effort to avoid giving Respondent her cell phone, R.D. testified that she put the cell phone behind her back and started walking backwards away from him.1 R.D. maintains that at some point during Respondent’s pursuit of her, she turned away from Respondent and began to run. R.D. further maintains that Respondent caught up with her from behind while she was trying to run away from him, pulled on her shirt, and at the same time put his foot behind her right ankle, and, as she was going forward, tripped her and pulled her backwards which caused her to fall backward onto her back and the floor. 1 It is undisputed that there are circumstances when a teacher has the authority to confiscate a student’s cell phone, and it is a student’s responsibility to surrender the cell phone when asked by the teacher. R.D. further maintains that she could see Respondent’s foot behind her ankle before she fell backward onto her back and the floor. E.P. testified that, upon entering the gym, he sat down with a group of other students and took pictures. E.P. testified that he observed Respondent approach R.D. from approximately 10 to 15 feet away from her after he had taken the picture identified as P-016 within the School Board’s Exhibit 10. However, E.P. testified that his view of Respondent was blocked when he took the picture. At one point, E.P. further testified that as Respondent approached R.D., he observed R.D. walking backwards. However, at another point in his testimony, E.P. equivocated and testified he was "not sure."2 E.P. further testified that when Respondent was approximately three to five feet away from R.D., R.D. turned away from Respondent so that her back was to Respondent. E.P. further testified that from a distance of 40 to 50 feet, he observed Respondent and R.D. engage in a physical struggle over the cell phone for "one to two minutes," followed by Respondent’s use of a "martial art or military takedown" technique and push against R.D., which caused her to fall to the floor. E.P. further testified that although he does not remember seeing Respondent pull on R.D.’s shirt prior to her fall, he claims to have seen Respondent push R.D., while she was either facing Respondent or they were "side by side," at which time, Respondent used the "martial art or military takedown" technique to trip and cause R.D. to fall to the floor. 2 E.P. testified in this regard as follows: Q. Well, you have to answer my question. She may have been trying to leave, but was she leaving--was she going backwards? A. Do you mean walking backwards? Q. Yes, sir. A. I would say, yes. Q. You would say yes or you saw her walking backwards? A. Walking backwards. Q. You saw that? I’m not sure. (T., pp. 52-53). Respondent testified that when he first noticed R.D. attempting to take his picture, he took R.D.’s cell phone from her and reiterated to her that he did not want his picture taken. Moments later, Respondent returned the cell phone to R.D. After Respondent returned R.D.’s cell phone to her, she continued to try to photograph him. Respondent further testified that at this point, he began walking toward R.D., from a distance of approximately four or five feet between them. While he approached R.D., Respondent put his hand out and told R.D. to give her cell phone to him. According to Respondent, R.D. began to walk backwards away from him as he approached her. Respondent testified that as he was reaching for R.D.’s phone, R.D. tripped and fell backwards onto the gym floor. As she was falling, Respondent caught R.D. by her arm to break her fall and guided her to the floor. Once on the floor, Respondent retrieved R.D.’s cell phone and walked away from R.D. After walking away from R.D., Respondent then approached J.B. and took away his camera. Respondent then walked out of the gym and into the adjacent hallway, where he left both the cell phone and camera. Respondent vehemently denied pushing R.D., grabbing her shirt, putting his foot or leg behind R.D., and engaging in any physical contact which caused her to trip and fall to the floor.3 At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, R.D., and E.P. The testimony of Respondent is credited and is more persuasive than the testimony of R.D. and E.P., which is not credited or persuasive. Notably, E.P.’s testimony differed from R.D.’s testimony in key respects. According to E.P., R.D. was facing or "side-to-side" with Respondent when he tripped her. However, R.D. testified that she was walking away from 3 Mr. Drummer approached R.D. while she was still lying on the floor and asked her twice if she was okay. Both times R.D. stated that she was fine, as Mr. Drummer helped her off the floor. After getting off the floor, R.D. retrieved her cell phone and J.B. retrieved his camera from the adjacent hallway, and R.D., E.P. and J.B. all walked back to Ms. Tobias’s class. Respondent when he tripped her. E.P. further testified that he observed Respondent push R.D., while R.D. testified Respondent pulled on her shirt. E.P. testified he did not see Respondent pull on R.D.’s shirt. Moreover, E.P. equivocated with respect to whether R.D. was walking backward or not. Had the incident occurred as testified about by E.P. or R.D., it is expected that at least one of the dozens of physical education students in the gym and another physical education teacher would have witnessed it. However, there is no indication that any of the dozens of physical education students or other teachers in the gym witnessed the incident as described by E.P. or R.D. Moreover, had the incident occurred as testified about by E.P. or R.D., it is expected that E.P. or another student in the gym would have taken at least one picture of R.D. and Respondent engaged in the purported physical struggle over the cell phone while they were both standing, or another picture depicting Respondent’s purported application of the "martial art or military takedown" technique. Instead, E.P. took only three pictures on the day of the incident that were offered into evidence at the hearing: P-014 within the School Board’s Exhibit 10; P-015 within the School Board’s Exhibit 10; and P016 within the School Board’s Exhibit 10. None of these pictures depict R.D. and Respondent engaged in a physical struggle over the cell phone before R.D. was on the ground--a physical struggle which E.P. described as lasting one to two minutes. And none of these pictures show Respondent tripping or otherwise engaging in physical contact with R.D. which caused her to fall to the floor. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not push, pull, trip, or otherwise make physical contact with R.D., which caused her to fall to the floor. Respondent’s conduct in the gym on April 18, 2018, with respect to R.D., does not constitute misconduct in office, incompetency, inefficiency, or a violation of School Board Policy 4008.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order rescinding the three-day suspension of Respondent, Antonio Dwight Beckham, and provide Respondent with back pay. DONE AND ENTERED this 9th day of March, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 9th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Douglas G. Griffin, Esquire School Board of Broward County 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Ft. Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
