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 The issue for consideration in this case is whether Respondent should be dismissed from employment with the Pinellas County Schools because of the misconduct alleged in the School Board's letter dated April 24, 1989.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Perry Hollis, was employed as a welding instructor at SPVOTEC, a facility operated by the School Board of Pinellas County. The Pinellas County School Board is the agency responsible for the administration of the public schools in the county. Respondent began working for the Pinellas County School Board as a welding instructor approximately 15 years ago. As a part of his job, he was required to take certain college courses in teacher training and now has 15 credit hours beyond his Bachelor's degree. At this time, and at the time of the allegations involved herein, he taught welding to mostly adult students at SPVOTEC where he has been employed for 13 years, satisfactorily, without any prior disciplinary problems. The evening before the incident in question, Respondent had been out gun training his dog. Since it is virtually impossible to hold the dog's chain and fire a rifle at the same time, he was using a pistol, the one involved in this case. Neither Respondent nor his wife have a permit to carry a concealed weapon. After the training session was over, Respondent placed the pistol into the door pocket on the driver's side of his pickup truck, put his dog in the back, and started home. He does not remember putting the gun in the door but can think of no other way it could have gotten there. On the way home, the dog jumped out of the back of the truck while it was moving and injured itself. When Respondent got it, he started to provide care for the dog and forgot the gun was in the door of his truck. Since the truck had been acting up, pursuant to an agreement with Mr. Protomastro, the auto mechanics instructor, the following morning he took the vehicle to school and left it at the auto shop so that students could work on it as a part of their training. This is legitimate. The car was assigned to Robert Mertz and Phat Le to work on. Mr. Protomastro drove the car into the shop but did not see the gun in the door. When Mertz got into the car, he saw the weapon in the door pouch on top of some maps and papers and took it out to show to Mr. Le. Mr. Le took it and tried to fire it but because the safety was on, it would not fire. When Le removed the safety, the weapon discharged one round, injuring no one and causing no damage. When Mr. Protomastro heard the explosion, he thought it was a firecracker and advised Phat Le not to shoot them off at school. Le told showed him the gun and Protomastro told him to put it back in the truck. He then took the truck with the gun back to Respondent at the welding shop and advised Hollis to be sure the truck contained no weapons if he brought it in again. According to Protomastro, when he first mentioned it to Respondent, the latter seemed surprised, and he has no less confidence in Respondent's abilities as a teacher even though in this incident, Respondent showed poor judgement. Protomastro did not report the incident at that time. However, when Mertz got home from school that afternoon, he told his mother what had happened. The following morning, she called the school to express her concern over the fact that someone had brought a gun to school. In her opinion, Respondent was wrong to allow the weapon to remain unattended in his car since it is his responsibility to keep the weapon under control at all times. No action was taken then, however. The incident was subsequently brought to the attention of Pinellas County school officials by Mr. Laux, SPVOTEC Director, several months after the incident. Mr. Crosby, Director of Personnel for the Board, caused a formal investigation to be conducted. Based on the investigation and his own limited inquiry, he recommended Respondent's dismissal. In the conversation he had with him, Respondent frankly admitted the gun had been in his car and explained the circumstances of it's getting there. Crosby recommended dismissal because he concluded Respondent's effectiveness as an instructor in the Pinellas county schools had been diminished by the incident. He takes this position because, (1) the media publicity the incident received, (one article and one editorial), reduced Respondent's effectiveness, and (2) he believed Respondent's supervisors, "must feel his effectiveness was reduced due to his lack of judgement." Mr. Crosby did not, however, check with Respondent's supervisors other than Mr. Laux, the Director of SPVOTEC, who concurred in a disciplinary action far less severe than dismissal. Nonetheless, Crosby recommended dismissal rather than some lesser action which could have been taken because: The severity of the situation - teachers are to provide conditions not harmful to students and here, Respondent created a dangerous situation, Students are expelled for bringing weapons to campus and they can do no less to teachers, and Respondent's lack of judgement. Mr. Crosby admits that in his relationships with Respondent, he always found Respondent to be completely forthright and cooperative and he is aware that Hollis has taught in the public school system for more than 13 years. He is familiar with Respondent's performance ratings which were always good. Considering all this, Crosby ultimately agreed with the Superintendent's position that Respondent be dismissed even though no teachers or students indicated their loss of confidence in Respondent as a result of this incident. Even in response to questioning by the Hearing Officer, Mr. Crosby indicated no opinion as to whether the incident was intentional on the part of Respondent. From a thorough review of the evidence it is clear it was not. Ms. Betty W. Arrigo is an interpreter for the hearing impaired who previously worked with Respondent at SPVOTEC. She is aware of the incident with the gun as a result of seeing the report in the newspaper. As a fellow instructor, she has lost no confidence in him as a result of the incident and knows from her communications with seven or so other faculty members that they feel the same way. None of her contacts have any reservations about working with Respondent and she has heard nothing derogatory about him from any of them. Mr. Phares was a student at SPVOTEC and took a welding course from Respondent before the time in issue. He heard about this incident only though the newspaper and even as a result of his reading, based on his first hand knowledge of Respondent, his faith in him as an instructor has in no way been diminished. He would not be reluctant to have Respondent as an instructor again. Admitting he is not bound by the same restraints and considerations as the school administration, and agreeing that guns should not be allowed on the school grounds, he nonetheless believe that if, as it appears in the instant case, the infraction was inadvertent and was an isolated incident, leniency should be shown. Much the same approach is taken by Mr. Stanjeski, who knew Respondent as an instructor at the time of the incident. He, too, is aware of it only from the newspaper, and has not lost any confidence in Respondent's ability as an instructor. Respondent insured that his students learned to work safely and was very much involved with them from a safety standpoint. Mr. Stanjeski would have no reservations about having his 10 year old son take a class with Respondent. He does not condone children or adults bringing a loaded gun to school, but under the circumstances as they appear here, he feels confident with Respondent and his teaching and supervisory abilities. Dr. Rose, Superintendent of Schools, became aware of the Respondent when he received the complaint from Crosby with the recommendation for dismissal. School Board policies prohibit weapons from being brought onto a campus by students or faculty. The purpose of these policies is to insure, as much as is possible, against accidents, and to promote the safety of both students and staff. Prior to adoption of a policy, several public readings are required, after which it is adopted and placed in a policy book furnished to all teachers. Respondent was aware of the policies. Respondent's bringing a weapon to school constitutes a violation of this policy but, in Dr. Rose's opinion, even worse, Respondent did not demonstrate the care for his students expected of a teacher. This constitutes major carelessness on his part, and in the opinion of Dr. Rose, constitutes a violation of the Florida Teacher's Code of Ethics. Dr. Rose also feels that Respondent's actions herein jeopardizes the safety of students. Respondent's judgement in this situation was poor, and his conduct put a dangerous instrument into the hands of a youth whose judgement had not matured. Dr. Rose feels that a teacher would not, if he valued the worth and dignity of his students, do anything potentially dangerous to their welfare. According to Dr. Rose, Respondent's conduct impaired his effectiveness as a teacher in that the work site was compromised. The Board envisions that a work site within the school system will be a safe place and for that reason, guns are not allowed on campus. To bring a gun on campus shows a disregard for the needs of the students. Prior gun incidents have sensitized the public to weapons on campus. As a result, any incident involving a gun on campus is considered critical by the Board, and brings back fears of danger to the students. Whenever a teacher creates a potential hazard to his students, it adversely impacts on his effectiveness, according to Dr. Rose. As Superintendent, he receives feedback from students, parent and teacher organizations, his division heads, and the public, and in this case, though the incident was not widely known until the dismissal was publicized, public demand for action was satisfied by the dismissal. Dr. Rose contends that while the press reaction is considered to be important, school Board decisions, and his in particular, are not dictated by the press. Nonetheless, the issue of guns on campus is very important to the public sector and the Board is sensitive to public reaction. The subject comes up frequently at public meetings and Dr. Rose receives many letters and phone calls about what is being done to keep guns off the campuses. After the articles previously mentioned appeared in the press in this case, Dr. Rose received substantial favorable feedback regarding the dismissal action against the Respondent. The substantial hiatus between the occurrence and the subsequent dismissal action resulted from the fact that the incident was not reported for several months. When the report was received, immediate action was taken to investigate it and to take appropriate corrective action. Local school administrators are supposed to act on their independent judgement within Board set parameters. In this case, Mr. Hollis' actions caused a question as to his ability to make valid judgements on his own and requires him to be more closely supervised. Therefore, his effectiveness, in the opinion of Dr. Rose, has been diminished. Though lesser punishments were available, Dr. Rose recommended the harshest discipline be imposed here because of the severity of the incident. The decision to dismiss Respondent was based on the fact that he had a gun on campus, aggravated by the potential danger to the students. Before taking action, Dr. Rose considered the Respondent's contention that he had forgotten the gun was in the car and, in fact, he believes this is so. In addition, his investigation disclosed no facts which lead him to believe that the incident would be repeated if Respondent were to be allowed to continue to teach. He is satisfied this was an isolated case and he considered that in making his recommendation for dismissal. Dr. Rose admitted that Respondent could probably be properly disciplined by lesser action, but, if that lesser action were taken, there is, in his opinion, a substantial risk that others might not get the important message regarding the policy against guns in the schools. Dr. Rose has not received any letters from parents as a result of this incident demanding that Respondent be dismissed. Nonetheless, he believes that because of the circumstances involved and because of the policy letters of the school Board and their intent that firearms not be brought onto campus at all; and because any time an incident involves bringing a firearm onto a campus, there is the potential for the weapon to be used in a harmful way, either directly or accidentally; it is imperative the strongest possible message be sent out stating that weapons will not, under any circumstances, be tolerated on the campuses of institutions within the jurisdiction of the Pinellas County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the continuing suspension with pay be lifted but that Respondent be reprimanded and suspended without pay for ten (10) days. RECOMMENDED this 25th day of September, 1989, in Tallahassee. 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 25th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2447 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. - 5. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. & 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted and incorporated herein. 18. 7 19. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. For the Respondent: Respondent did not number his paragraphs in the Statement of the Facts, so the paragraphs will be addressed in turn as though they had been numbered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney Post Office Box 6374 Clearwater, Florida 33518 Mark Herdman, Esquire Kelly & McKee, P.A. 1724 East 7th Ave. Tampa, Florida 33605 Dr. Scott N. Rose Superintendent of Pinellas County Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1996.
The Issue Did Petitioner, Gregory K. Adkins, as Superintendent for the Board of the School District of Lee County, Florida (Superintendent), prove just cause to terminate the employment of Respondent, Orlando Torres?
Findings Of Fact The Superintendent, on behalf of the School Board of Lee County (Board), is responsible for hiring, overseeing, and terminating, all employees in the school district. At all times material to this case, the Board employed Mr. Torres as a security specialist at East Lee County High School (East Lee). Mr. Torres also sometimes served as an assistant coach and/or substitute athletic trainer. Mr. Torres has worked for the Board since August 5, 2011. For the 2011 through 2015 school years Mr. Torres’ received a final Performance Evaluation with a score of “Effective” in all areas assessed. The "Manager Comments" on Mr. Torres' Final Performance Evaluations consisted of the following: "Mr. Torres is an integral part of the MLE [Mirror Lakes Elementary] team. He has been a great addition to our staff [2014-2015 Evaluation]”; "Mr. Torres is a very valuable asset and is well respected and supported as an integral part of the MLE team [2013-2014 Evaluation]"; "Orlando performs various duties at East: security and coaching. He has done a good job with both. Orlando was accepting of taking on the night security position until a candidate was hired [2012-2013 Evaluation]"; and "Orlando is a team player and is always willing to go above and beyond to help staff and students [2011-2012 Evaluation]." Mr. Torres is a member of SPALC and was a member during all periods relevant to this matter. On February 4, 2016, the Board’s Department of Professional Standards and Equity (PS&E) received reports that on several occasions Mr. Torres made inappropriate comments and sexual remarks in the presence of or to female high school students. The comments included suggestions that Mr. Torres was interested in sex with the students. The comments caused the students extreme discomfort and embarrassment and created an inhospitable learning environment. The Board investigated. The information it collected caused the Board to terminate Mr. Torres’ employment. PS&E Coordinator, Andy Brown, conducted an investigation that included interviews of several students and of Mr. Torres. When Mr. Torres met Mr. Brown for his interview, Mr. Torres did not know the reason for the interview. Mr. Brown advised Mr. Torres that he was the subject of an investigation and asked him if he knew what it was about. Mr. Torres said: “When I meet with a female, I always have another female present.” This was not true. Mr. Torres’ spontaneous and dishonest statement in response to simply being asked if he knew what the investigation was about is persuasive evidence that he had improper conversations with female students and is a contributing factor to concluding that his testimony denying the charges is not credible. In November and December of 2015, and January 2016, Mr. Torres made several sexually charged, inappropriate comments to students. Five of the incidents involved N.M., who was an eleventh grade student at the time. N.M.’s mother worked at the school. Consequently, N.M. stayed at school after classes until her mother left work. N.M.’s mother arranged for N.M. to assist Mr. Torres in his training tasks after school. This is how she met Mr. Torres. The arrangement lasted about a week. Around November 2015, Mr. Torres gave N.M. a “high-five.” He prolonged the contact by grabbing her hand and intertwining his fingers with hers. In a separate incident, while giving N.M. a “bandaid” for a scratch, Mr. Torres asked her if she would ever get involved with a married man. She said no and walked away. On another occasion, N.M. encountered Mr. Torres while she was walking to lunch. N.M. was wearing what she described as a “burgundy semi-see-through” shirt. Mr. Torres told her to cover up her “goodies” or her “girls,” referring to her breasts, so nobody else could see them. N.M.’s testimony used the word “girls” while her statement in February 2016 said “goodies.” This minor discrepancy is understandable given the passage of time and the stresses of an interview and testimony. On yet another occasion, Mr. Torres remarked in Spanish, when N.M. bent down, “I like ass.” Mr. Torres spoke to N.M. after she had been called to the school office to provide a statement about a conflict that Mr. Torres had with another student. When he learned the purpose of the request for a statement from N.M., Mr. Torres said, “I thought I was gonna get in trouble for flirting with you; thank god we didn’t take it to second base.” In early February, N.M. was walking with her then- friend S.S., when Mr. Torres exited a room and saw them. He said “you look delic . . ., beautiful,” to N.M., shifting from “delicious” to “beautiful” when he noticed S.S. Mr. Torres also made a comment about wishing N.M. was 18. Another Security Specialist, Russell Barrs, who N.M. considered a friend, overheard bits of a conversation between N.M. and S.S. about the encounter. He asked N.M. about it. She replied with generalities A day or two later N.M. met with Mr. Barrs and provided complete information about Mr. Torres’ comments to her. Mr. Barrs reported this to Assistant Principal Edward Matthews. Mr. Matthews launched the investigation. It is noteworthy that S.S., whose friendship with N.M. ended, still testified to the same events as N.M. did. The two had a falling out sometime in 2016. The testimony of S.S. was not a matter of loyal support for a friend. In fact, the tone and body language of both students gave the distinct impression that the end of the friendship was not pleasant. N.M.’s mother had just started working at the school. N.M. did not immediately report Mr. Torres’ advances to her mother or other adults. When she did report them, her initial statements were incomplete and vague. She just told her mother she was not comfortable being in the room with Mr. Torres. She also told her mother that Mr. Torres “says things.” Later, after speaking to Mr. Barrs, N.M. provided her mother a complete description of the comments. After classes, Mr. Torres spent a good deal of time in the training room where first aid supplies and ice are stored for student-athletes. The training room was divided into two smaller rooms separated by a door that was usually shut. One room contained the ice machine, other equipment, and supplies. The other part of the room served as an office for Mr. Torres. Students, including N.M. and C.P., assisted or visited with Mr. Torres in the training room at times. C.P. was a female student who served as one of the managers for the girls’ basketball team. Once while observing her prepare an ice pack by sucking air out of it, Mr. Torres said words to the effect of “like how you suck a boy’s dick.” C.P. was a ninth grader at the time. Mr. Torres also told her that he would like to marry her when she turned 18. Another time, Mr. Torres tried to hug C.P. Mr. Torres also told C.P. that they should not talk in the hall because the security video cameras may record them. Another time, after overhearing a discussion in Spanish by several female students about sexual activity, Mr. Torres told C.P. that if he ever had sex with her he would break her. Two or three times Mr. Torres told C.P. that she was beautiful and he wanted to marry her after she graduated. The comments made C.P. extremely uncomfortable and unsure of what to do. She was scared. She quit her position as manager to avoid contact with Mr. Torres. Like N.M., C.P. was slow to report the comments to an adult. When she first told her step-mother she described Mr. Torres’ comments as coming from a substitute teacher. C.P. was scared and did not want to get involved. When she did, the details understandably came out in bits and pieces. Mr. Torres’ improper familiarity with students N.M. and C.P. and his sexually charged comments were frequent and varied. They were improper and detrimental to the emotional and mental health of the students. The crux of Mr. Torres’ defense is that none of the testimony about his actions is true. His testimony is not as credible as that of the students who testified to his offenses. One reason, mentioned earlier, is Mr. Torres’ spontaneous statement when Mr. Brown met him for the interview that he was never alone with a female. It manifests guilt and anxiousness that would not be present without his being aware of his improper behavior. Another reason is that the testimony of the students is sufficiently consistent to provide credibility. And N.M., C.P., and S.S. all made reports within a few months of Mr. Torres’ comments. A third reason is that N.M.’s testimony was supported by S.S. at hearing even though their earlier friendship had ended. A fourth reason is that there is no evidence of a motive for N.M., S.S., and C.P to fabricate their reports. For the time period when Mr. Torres made the comment to C.P. about “breaking her,” several students offered differing testimony about who was in the room when and whether Mr. Torres was giving a student instruction on a trumpet. This testimony is not sufficient to impeach the credibility of N.M. and C.P. Those were not the students to whom the offending remarks were made. The details of that day would not have been noteworthy to them at the time. Similarly, given the nature of Mr. Torres’ comments, the details of exactly who was present when would have been secondary to N.M. and C.P. Finally, Mr. Torres made one particularly transparent and deliberate effort to manipulate the truth during cross-examination that undermines relying on Mr. Torres’ testimony. Early in the hearing, in Mr. Torres’ presence, the Board attempted to enter evidence that during prior employment as a detention officer with the Sheriff of Lee County, Mr. Torres reacted to teasing by other officers by drawing his service pistol. The objection to the evidence was sustained. Later Mr. Torres testified that the testimony against him was not credible because he would never take such risks at a school where his wife was also employed, his children were students, and N.M.’s mother was employed. This testimony opened the door to the pistol drawing incident as evidence of Mr. Torres taking risky actions at work. The exchange about the incident, starting at page 329 of Volume II of the Transcript, follows: Q: But you engaged in risky behavior in your two law enforcement jobs prior, did you not? A: I don’t consider that risky behavior. Q: Well, you don’t consider pulling your service revolver as risky behavior? [objection and ruling] A: I have never carried a revolver. Q: Your service weapon, sir? ALJ: You said you never carried a revolver. Have you ever carried a pistol? A: Yes sir. ALJ: Next question. Q: Would you consider pulling your service pistol in an inappropriate manner risky behavior, sir? A: Yes, sir. Mr. Torres testified with full knowledge from the earlier attempt to introduce evidence of the incident to what the question referred. His answer was hair-splitting at best and demonstrated a willingness to shade, if not evade, the truth that significantly undermines his credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Respondent, Orlando Torres, and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 31st day of October, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2016.
Findings Of Fact 1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993. 2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County. Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level. The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks. Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school. Mr. Long missed or was late for parent-teacher conferences because of his tardiness. Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions. Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences. Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information. Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21. Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes. Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up. Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989. Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents. Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements. Student response to such actions caused a distraction to other classes and teachers. As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work. Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies. On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone. On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district. The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty. Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office. Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences. On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination. Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program. In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program. Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class. On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine. Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990. On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class. On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom. Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day. On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests. On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death. When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail. District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled. On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences. Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted. On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992. On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency. On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order. Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years. School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher. All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again. The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior. Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education. Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies. The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long: shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district; shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance; shall perform his assigned duties in a competent professional manner; shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods. During the probationary period, Mr. Long shall submit to random drug testing. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992. WILLIAM R. DORSEY, JR. 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 29th day of June 1992.
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment should be terminated.
Findings Of Fact At all times pertinent to this case, Tuff was employed by the School Board as a custodian and assigned to one of the School Board's transportation centers. At all relevant times, Tuff was an "educational support employee," who has successfully completed his probationary period within the meaning of Section 1012.40, Florida Statutes; a member of a collective bargaining unit represented by the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME); and was covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). For at least two years prior to his termination, Tuff's attendance record and job performance were poor. Tuff repeatedly violated School Board rules regarding unauthorized absences and or procedures relating to medical leave. Under the AFSCME contract, the School Board could have taken disciplinary action, including termination, on numerous occasions during this period, but did not. By way of defense, Tuff contended that at all relevant times, the School Board knew or should have known that Tuff's absences were related to a medical condition which has since been mitigated through proper treatment. Tuff's evidence concerning what, if any, medical condition he had was unpersuasive. It is therefore unnecessary to reach the question of whether Tuff's medical condition, if proved, would have afforded a legal defense to his absences from work under the facts and circumstances of this case. Tuff's absences created a morale problem among co- workers, who were chronically imposed upon to perform tasks which properly belonged to Tuff. Tuff's co-workers complained to mutual supervisors. Supervisors, in turn, spoke frequently to one another and to Tuff about his attendance record, all of which was disruptive to the workplace. Although it is a violation of School Board policy to discuss a personnel issue with a non-employee, on one occasion, a supervisor in Tuff's chain of command, who had known "Mr. Tuff and his entire family for over 20 years," discussed Tuff's absenteeism with Tuff's father. By the spring of 2004 Petitioner decided it would no longer tolerate Tuff's inability to comply with its rules prohibiting unauthorized absence. At least one supervisor concluded there was "no other alternative but to follow the procedures and recommend termination." Petitioner thereafter commenced to document Respondent's unauthorized absences from the workplace, and to provide Respondent with applicable statutory and contractual notice regarding his failure to comply with Petitioner's relevant policies. More specifically, on April 8, 2003, and May 5, 2003, Tuff received verbal warnings for unauthorized absences. On June 18, 2003, Tuff received a written warning regarding continued unauthorized absences. The School Board documented and proved 11 unauthorized absences in the first and second quarters of 2003. Under the AFSCME contract, ten unauthorized absences in a 12-month period constitute grounds, standing alone, for termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Tuff's employment. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 5th day of May, 2005. COPIES FURNISHED: Denise Wallace, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
Findings Of Fact The Respondent is a teacher licensed in the State of Florida, holding a continuing contract of employment as a classroom teacher and assigned as a teacher at Boyd Anderson High School at times pertinent hereto. The Petitioner is the School Board of Broward County, a local school district charged with employing teachers for instruction of students and regulating the conduct and practices of those teachers in the course and scope of their employment with authority to impose disciplinary action on those instructional employees who have been found to have engaged in various forms of misconduct in office within the mandates of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code. On July 21, 1982, an Information was filed by the State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, charging the Respondent with kidnapping and sexual battery. On August 25, 1982, a capias was issued by the Circuit Court for the Seventeenth Judicial Circuit for the arrest of the Respondent for those charges. The Respondent has never been tried and no adjudication has been entered in that criminal proceeding as of the time of the hearing and the close of the evidence herein. The Respondent pled not guilty to those charges. John E. Aycock is the principal of Boyd Anderson High School. The Respondent was employed as one of his math teachers, having been so employed for two years at Boyd Anderson High School. He had a discussion with the Respondent concerning these charges and the Respondent acknowledged that he was charged with sexual battery and informed Mr. Aycock that he was innocent of those charges. The Respondent's evaluations as to his effectiveness as a teacher had all been satisfactory prior to the subject incident. Thomas J. Patterson is the Chief of the Internal Affairs Division of the Broward County School System and was so employed in July of 1982, at times pertinent hereto. The Respondent contacted him in a similar fashion regarding the subject charges and repeatedly denied them. Upon his recommendation, the Respondent was suspended from employment with the School Board, with pay, pending the outcome of the investigation of the subject charges. The remainder of Witness Patterson's testimony consisted totally of uncorroborated hearsay liened from prior police reports and what "others told him" regarding the Respondent's whereabouts on the date the conduct charged allegedly occurred and hearsay reports he received of the specifics of that conduct. No factual findings can be made herein regarding that hearsay testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the party, it is RECOMMENDED: That the petition filed against Joseph Brehmer in this proceeding be dismissed in its entirety and that his suspension be terminated. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of June, 1983. COPIES FURNISHED: James A. Brown, Esquire 200 South East 6th Street Courthouse Building Suite 600A Fort Lauderdale, Florida 33301 Terrence J. McWilliams, Esquire 1999 South West 27th Avenue Miami, Florida 33145 Joseph J. Brehmer 7824 North West 70th Court Tamarac, Florida William T. McFatter, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33338
The Issue Whether the Respondent, Gloria P. Adams, violated School Board rules regarding a drug-free workplace, and excessive absenteeism; whether she abandoned her position of employment; whether Respondent committed gross insubordination or willful neglect of duty; and if so, whether such violation(s) support termination of Respondent's employment with the School District.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the authority charged with the responsibility of operating, controlling, and supervising all public schools within the Miami-Dade County, Florida School District. As such, its duties also include the personnel decisions related to teachers employed by the School District. At all times material to the allegations of this matter, the Petitioner employed the Respondent pursuant to a professional services contract. The Respondent was assigned to serve as a teacher at Jan Mann Opportunity School. On December 21, 2001, the Respondent presented for work staggering (in fact she fell down) with a disheveled appearance. At that time Respondent spoke with slurred speech and used verbally aggressive words. Based upon her appearance and actions, together with what was perceived as a strong odor of alcohol, the Respondent's supervisor determined that she should complete a "reasonable suspicion form." The form is designated when an employee is suspected of drug and/or alcohol use on school property. Betty Major completed the form (Petitioner's Exhibit 1) and noted Respondent's unsteady gait as well as the other indicators of being under the influence. Moreover, the Respondent admitted she had been drinking alcohol the night before. During the interview conducted by Ms. Major, the Respondent exhibited marked irritability and expressed anger. As a result, the Respondent was relieved of duty. The Respondent subsequently refused to submit to a drug and alcohol screening. On January 10, 2002, the School Board's Office of Professional Standards held a conference-for-the-record (CFR) and informed the Respondent that the refusal to submit to drug and alcohol screening would be considered a positive test response. The details of the CFR are memorialized in Petitioner's Exhibit 2. At the CFR the Respondent was also advised that she had excessive absences. Although the Respondent maintained she was physically ill and unable to attend school, documentation from a treating physician to support the number of absences has not been provided. At the conclusion of the CFR, the Respondent was provided with a copy of the School Board rule regarding its policy for a drug-free workplace, a copy of the responsibilities and duties rule, and the code of ethics of the Education Profession in Florida. The CFR was concluded with an indication from Respondent that she would promptly address the issues raised therein. As part of the CFR the Respondent was advised of her opportunity to obtain assistance through the Employees' Assistance Program (EAP). Among its functions the EAP counsels School Board employees with substance or drug abuse concerns. Alcohol is considered a "drug" under the drug-free workplace policy. The Respondent initially agreed to complete the EAP requirements in order to return to the classroom. She did not fully cooperate with or complete the program. On April 15, 2002, a second CFR was conducted with the Respondent. This meeting again sought to address the Respondent's ability to return to duty and her noncompliance with the drug-free workplace policy. At the second CFR the Respondent again expressed a willingness to complete the EAP and to obtain appropriate help for her on-going problems. The Respondent was directed to comply with the recommendations made by the School District's EAP. The Respondent continued to be apologetic for her past behaviors. On August 13, 2002, a third CFR was held between the Respondent and the Office of Professional Standards. The agenda for that meeting was similar to the past CFRs. The Respondent had not complied with the EAP, had not explained the unauthorized excessive absences, and the issue of the presumptive positive response for the drug and alcohol screening still loomed large. Again, as in the past, the Respondent apologized for not completing the EAP. Additionally, the number of leave without pay (unauthorized) absences had by that time grown to The Respondent had also exhausted her sick/personal leave time. The absences were directly attributable to the Respondent's failure to complete the EAP. Basically, the Respondent was unable to be cleared to return to the classroom until she completed the EAP. She failed to complete the EAP so the number of unauthorized absences continued to grow. Eventually the Respondent was dropped from the EAP due to lack of participation. Her case was then closed. The Petitioner gave the Respondent numerous opportunities to demonstrate she was fit to return to the classroom. The Respondent did not offer any credible explanation for her actions. Regrettably, the Respondent demonstrated by her failure to comply with the EAP that she was unprepared to return to the classroom. The Respondent did not request medical leave (with appropriate documentation from a physician) if her condition were due to a physical illness. Moreover, the Respondent did not apply for any leave that might have protected her job. This lack of judgment in itself suggests the Respondent was impaired and therefore unable to perform her duties as a classroom teacher. At the minimum, had Respondent attended the EAP she could have received counseling and assistance that might have protected her future employment with the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a Final Order confirming the initial decision to suspend without pay and to terminate the employment of the Respondent based upon just cause as set forth above. It is further recommended that, should the Respondent complete an accepted program for substance abuse and demonstrate fitness for Duty, that the School Board consider re-employment of the Respondent. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Gloria P. Adams 19511 Northwest 8th Avenue Miami, Florida 33169 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
