The Issue Whether just cause exists to impose discipline on Respondent’s employment; and, if so, what is the appropriate discipline.
Findings Of Fact At all times material to this case, Respondent was a School Board employee. Respondent was employed as a custodian at Choctawhatchee High School (“Choctaw”) when he was terminated in 2017. As a custodial employee, Respondent was subject to the Collective Bargaining Agreement entered into between the School Board and the Okaloosa County Education Association. When he was terminated, Respondent had been employed by the School Board for approximately 24 to 26 years. Respondent was employed as a custodian at Choctaw beginning in 2015. Prior to that, Respondent was employed by the School Board as lead custodian at Choice School (“Choice”). Before that, at least five years before his employment at Choctaw, Respondent was employed by the School Board as a pre-K liaison at Edwins Elementary (“Edwins”). In addition, Respondent had been employed by the School Board over the years as a bus driver and in other custodial positions. The School Board's termination of Respondent's employment was based largely upon a formal equity complaint1/ (“Formal Complaint”) submitted on October 5, 2017, by Mrs. Williams, a volunteer at Choctaw, alleging harassment by Respondent with an attached email addressing her concerns regarding contacts by Respondent and a history of alleged harassment by Respondent. The email attached to Mrs. Williams' Formal Complaint is dated October 3, 2017, and states: Harassment has gone back to Edwins Elementary nearly 8 years ago. I was a parent as well as a PTO [parent teacher organization] Member/President for a few years at Edwins Elementary. There were constant unprofessional/vulgar comments made by Steve Hall in reference to my body and parts of my body, the way my clothing may fit certain areas of my body or his requesting to take photos of me. I think on occasion he may have taken some photos because as I would turn around and his phone was lifted in my direction to do so. On countless occasions employees would stand with me to hinder him hanging around and commenting. This frequently occurred during his employment at Edwins Elementary School. On one occasion my young high school age daughter, at the time, was at Edwins Elementary School with me during school hours. I was introducing my daughter to some people and Steve walked up so not to be rude I introduced her to him as well. Steve Hall's comment was not "hi" or "how are you?" it was "move over mom . . .!" As her mother I was disgusted! I told Mr. Farley but my daughter did not want to get into it or write a statement. I respected her wishes and just limited her presence on that campus. This entire time I have also been volunteering at Choctawhatchee High School. I found out that he was moved from Edwins to another school. I am still a full-time volunteer at CHS [Choctaw] and one day Steve Hall showed up at Choctaw's front desk. Knowing what actions I have seen from him I was extremely concerned finding out Steve is now an employee at Choctawhatchee High School. Approaching me at the front desk at Choctaw began to be a habit for Steve Hall. I called and met with Mr. Farley to work out a solution hoping this could be resolved professionally. The rule was Steve was not to be anywhere within the front office area to include the mail room. I have had to call Mr. Farley on multiple occasions because he continued to approach me in the front office. Currently he continues to try to communicate inappropriately with me at the football games or on campus, school events. Steve sits in the stands eating concession food and watching the football games for the most of the game. Steve tries to initiate conversation through my son who is special needs and only understands he is suppose to be nice to everyone. Not wanting/needing to explain this situation to my son. [sic] My son responds when spoken to by Steve because Steve is an adult and my son knows I require respect from him no matter who speaks to him. This makes football games and school events difficult every season with this year being no different! At the CHS vs. Tate game I was thankful there was a fence between the sections we were sitting in, so that he could not get closer without going all the way down and back up. I just turned away with no response. It is frustrating feeling like I have to hide to avoid Steve! This school year Steve has come to the front office area 3 times within the first month and a half of school. Each time I reported it and Steve was told to stay away from the front office. On one of the occasions I was in the back, in the mail room. Someone came to let me know Steve was up front looking for me. I tried to go out the back of the mailroom door to Mr. Snaith's office to get assistance and Steve walked in to confront me. The confrontation was extremely uncomfortable to say the least. About that time Mr. Snaith walked in and witnessed most of the confrontation escorting me away from Steve and we called Mr. Farley. Again! Steve was talked to about not coming to the front office for any reason. He has Ms. Liz's phone number (his supervisor) if he needs her. He has since come back to the front office again! He was told again not to come to the front office at all for any reason and it was discussed by Mr. Farley he needed to be more aware of his actions and the way they may be perceived. I am also the parent in charge of "Parents for Prior." After this years current situations, Steve was spoken to by Mr. Bill Smith. Steve Hall approached me at the Pryor Middle School football game held at Choctaw stadium. I was trying to work a table at the game, soon after the most recent issue. Steve approached my son first then walked closer to me requesting to speak to me for a "hot minute" in the alley between the touchdown shack and stadium. I'm sure it would be on the stadium cameras as stated in my statement to Bill Smith. I was unable to leave due to my possession of money and tickets. I glared at Steve and he stated I guess I should just keep walking. I nodded "yes"! This is only the most prominent on campus situations. I called Bill Smith and explained I should tell Steve to stay away. I feel we are past this due to this being years in the making. This has already been addressed and discussed with Steve on multiple occasions. Bill Smith stated I needed to send him an email statement and apologized he had not yet gotten with Mr. Chapman, from a week before, because of the hurricane. This was my second statement to Bill Smith this school year as well as one meeting with him. I enjoy volunteering my time at Choctawhatchee High School. Within a few years I'll be a Choctaw parent, unless I am required to move my son to another high school because of this. This is not what I want to do as a parent or volunteer. I do not feel it is fair I may need to remove myself and choose another high school for my son to attend because of an employee's unprofessional/vulgar behavior. Steve Hall repeatedly drives by my home. The latest time that I know of was within a week or so before school started this year 2017-2018. I was on the phone walking out of my home, I looked up and saw Steve sitting out in front of my home rolling down his window motioning me to come talk to him. I turned to return inside to get my husband, who is law enforcement, but Steve drove off in his green avalanche. I do not live on a main road nor have I given him my address. My street is not a road someone would just drive by on. If this continues I will file a restraining order. If there are any questions or concerns please do not hesitate to contact me. Mrs. Williams’ Formal Complaint was assigned to Gary M. Marsh, investigator, Escambia County School District, on October 11, 2017, for investigation. Mr. Marsh conducted his investigation and submitted his investigative report dated October 31, 2017, to the School Board's superintendent. The investigative report was hand-delivered by Mr. Marsh and received by the superintendent on November 3, 2017. In a letter dated November 14, 2017, the School Board's assistant superintendent of human and resources advised Respondent that she was recommending to the superintendent that Respondent be suspended with pay, effective immediately, and further that his employment with Petitioner be terminated at the December 11, 2017, School Board meeting. The letter states: Mr. Hall, An investigation has now been completed regarding the Formal Equity Complaint made against you on/or about October 5, 2017. A copy of the investigative report is attached for your information and review. This is the second formal investigation of an equity complaint against you since 2014. Based upon a culmination or multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years, I am recommending that the Superintendent suspend you with pay effective immediately and further that your employment with the School District be terminated at the December 11, 2017, School Board meeting. The charges against you are based upon the finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC); in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School (CHS). Additionally, while at CHS, new allegations of harassment have been made against you. Due to these allegations you were directed on multiple occasions by both your supervisor and a district administrator not to enter the CHS front office or mail room. As a result of a recent investigation it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur. Your conduct is considered to be gross insubordination, misconduct in office and harassment in direct violation of the following School Board policies: School Board Policy 07-03 Employment Conditions for Education Support Personnel School Board Policy 06-27 Equity Policy: Harassment on the Basis of Race, Color, National or Ethnic Origin, Sex, Age, Religious Beliefs, Marital Status, Pregnancy or Disabilty In accordance with both School Board policy 06-28 E(2) and Section K(a) of the OCESPA Master Contract you may file a written appeal to the Superintendent within ten (10) calendar days of receipt of the enclosed investigative report and this recommendation. In a letter dated November 29, 2017, the assistant superintendent of human resources requested that the superintendent recommend to the School Board that Respondent be terminated for gross insubordination, misconduct, and harassment. The Superintendent notified Respondent in a letter dated November 29, 2017, that she would recommend his termination from employment at the December 11, 2017, School Board meeting for gross insubordination, misconduct, and harassment. At its December 11, 2017, meeting, the School Board approved the superintendent’s recommendation, and Respondent was terminated from his custodian position. Neither Superintendent Mary Beth Jackson nor Assistant Superintendent Stacie Smith testified at the hearing. According to the November 14, 2017, letter from the assistant superintendent, quoted above, the recommendation for Respondent's termination is "[b]ased upon a culmination of multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years." [emphasis added]. The three allegations that form the basis of the recommended discipline against Respondent are analyzed below under headings derived from the November 14, 2017, letter as follows: 1) "finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC)"; 2) "in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School"; and 3) "it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur." ILLICIT MATERIAL IN RESPONDENT'S DESK AT EDWINS AND REPEATED INAPPROPRIATE COMMENTS TO COWORKERS LEADING TO A TRANSFER At the hearing, it was revealed that Respondent's employment at Edwins predated his employment at Choice. Respondent was employed at Choice during the 2013-2014 school year.2/ Therefore, the alleged illicit material and inappropriate comments that allegedly occurred at Edwins could not have taken place "over the course of the last three years," as alleged in the November 14, 2017, letter. Notwithstanding the fact that none of the alleged “Edwins events” could have taken place over the past three years as alleged, the School Board presented no testimony or documentary evidence to prove the underlying fact that Respondent had “illicit material” in his desk while employed at Edwins. In fact, there was no testimony at all concerning this alleged prior discipline. Mrs. Williams’ email attached to her Formal Complaint states that the alleged harassment "has gone back to Edwins Elementary nearly 8 years ago." In fact, Mrs. Williams first met Respondent at least seven years before she filed her Formal Complaint against Respondent referenced in this case. When they first met, Respondent worked with the in-school suspension and student training programs at Edwins and her son attended Edwins. Mrs. Williams was a volunteer with the parent-teacher organization. Her duties as a volunteer included fundraising. Mrs. Williams described her initial relationship with Respondent as a casual friendship. Mrs. Williams kept her parent-teacher organization materials in his office and would often call him to gain access to those materials. A self- described “hugger,” while at Edwins, Mrs. Williams used to initiate hugs with Respondent and others. Although not a part of the allegations against Respondent, the evidence shows that, on one occasion, while at Edwins, Respondent asked Ms. Williams “was [she] ever into blacks." Mrs. Williams responded, “No” and that she was married. Respondent asked if she knew anybody who was into blacks because he had a friend who was into “white chicks.” Mrs. Williams told him that she knew a secretary at Choctaw who dated “black guys.” There is no indication that Mrs. Williams considered this conversation with Respondent as offensive or harassment. Mrs. Williams’ email attached to her Formal Complaint alleges that, while at Edwins, Respondent made inappropriate comments to her about her body, parts of her body, the way her clothes fit and asked to photograph parts of her body. Mrs. Williams testified that she was dismayed by his comments but never told Respondent to stop or leave her alone. Regarding Respondent’s alleged request to photograph her, Mrs. Williams testified that he made the request only once; she shook her head "No," but did not verbalize any protests and walked away. Mrs. Williams also alleges that while working at Edwins, Respondent made her aware that he was interested in her by his eye gestures and other nonverbal cues, as well as sometimes saying “whoa” when he walked by her. Respondent denies making gestures or statements indicating that he was sexually interested in Mrs. Williams. There is no indication that Mrs. Williams ever told Respondent to stop his alleged behavior or that she reported the incidents at the time. Mrs. Williams does not recall whether she reported Respondent’s alleged comments or request to photograph her to anyone at the time. Respondent denies the allegations. No witnesses were called to corroborate Mrs. Williams' allegations, and Mrs. Williams testified that she could not “attest” to anyone who could corroborate her allegations. In her testimony, Mrs. Williams explained the reference in her email attached to her Formal Complaint about the occasion at Edwins when Respondent allegedly told her to “move over mom” after she had introduced her daughter. She testified that Respondent’s statement was very offensive and sexual in nature because she believed that Respondent was saying that he liked her but now that he saw her daughter “[he was] going to go after [her] daughter.” Mrs. Williams further testified that she believed that the incident was a reportable offense because her daughter was a minor at the time, but that her daughter did not want to report and she did not file a formal complaint. Mrs. Williams testified that that Respondent had referred to her by nicknames such as “baby,” “baby girl” and “sweetie,” which she found unprofessional and made her feel uncomfortable. While there is evidence that Respondent has used the term “baby girl” in his vernacular, he explained that he used the term as just another way for saying “how you doing.” Respondent explained in his testimony that it was just “[a]nother saying for saying hey, shortie, like they say. So you say, hey, baby girl, how are you doing today?” The context of Mrs. Williams' testimony on this point suggests that Respondent used the nicknames for Mrs. Williams while they were both at Edwins. There is no evidence, however, that Mrs. Williams reported these instances at the time. There is also no evidence that Mrs. Williams ever told Respondent not to call her nicknames, or that she reported Respondent’s use of nicknames. Remarkably, Mrs. Williams’ Formal Complaint does not even mention that Respondent called her by nicknames. Despite the allegations against him, there is no evidence that while at Edwins, or at any other time, Respondent asked Mrs. Williams for a date, out for drinks, suggested that they have sex, touched her inappropriately, talked to her on the phone outside of school, or interfered with Mrs. Williams’ ability to perform her volunteer duties or responsibilities. The allegations against Respondent, while he was at Edwins, do not fall within the “course of the last three years” as alleged in the charging document (the November 14, 2017, letter) and are, therefore, inconsistent with the reasons espoused by the School Board for the discipline sought in this case. Moreover, considering the fact that Mrs. Williams’ allegations against Respondent while he was at Edwins were not timely reported, that her allegations were uncorroborated, drew no protest from Mrs. Williams at the time, and were denied by Respondent, it is found that the evidence is insufficient to show that Respondent harassed Mrs. Williams, sexually or otherwise, while at Edwins. In sum, the evidence presented at the final hearing was insufficient to prove that Respondent made “repeated inappropriate comments,” which led to “coworkers feeling harassed” while he was at Edwins. The evidence also failed to show that Respondent was transferred because of those comments or because illicit material was found in his desk. LATE 2014 ALLEGATIONS OF UNWANTED SEXUAL BEHAVIOR CONSTITUTING SEXUAL HARASSMENT LEADING TO RESPONDENT’S DEMOTION AND TRANSFER FROM LEAD CUSTODIAN TO A CUSTODIAN AT CHOCTAW This allegation, as set forth in the November 1, 2017, letter from the assistant superintendent, refers to allegations of sexual harassment that occurred in 2014 when Respondent was a lead custodian at OTC, which is in the same facility as Choice. In 2014, Respondent began working at Choice as a lead custodian. The allegations arising from Respondent’s time at Choice are not included within Mrs. Williams’ Formal Complaint. The School Board presented no testimony or competent substantial evidence to prove the underlying facts that Respondent committed “unwanted sexual behavior constituting sexual harassment” while at Choice. Respondent testified concerning this alleged prior discipline, acknowledging that he allowed a teacher at Choice to listen to some rap music, that he used the term “baby girl,” and that the School Board considered the use of the term “baby girl” a form of sexual harassment. Respondent denied, however, that he engaged in inappropriate conduct or sexual harassment. Respondent testified that he accepted a transfer as a lead custodian at Choice to a Custodian II position at Choctaw. He further testified that he was advised by the School Board that he would be transferred back to a lead custodian when a position became available. The School Board presented its Exhibit P-8a as evidence of this alleged prior discipline, which was ultimately proffered and “admitted” as a proffered exhibit (Proffer P-8a). Upon reconsideration, while it lacks evidentiary value, Proffer P-8a is received into evidence. Proffer P-8a, entitled “Confidential Inquiry Summary,” is an investigative report purportedly authored by Arden E. Farley, as a contract investigator for the School Board. Proffer P-8a does not prove the underlying facts and does not constitute competent evidence in support of the discipline sought against Respondent in this case. No witnesses were called to prove the underlying discipline related to Respondent’s alleged demotion. Furthermore, Proffer P-8a is hearsay and does not corroborate direct testimony or any other competent evidence. Because Proffer P-8a references Respondent’s alleged use of the term “baby-girl,” the School Board, through counsel, argued that Proffer P-8a is evidence that Respondent was aware that the use of the term “baby-girl,” or similar terms, was improper and could subject him to discipline. This conclusion is contrary to the evidence presented at the hearing. Although Mrs. Williams testified that Mr. Hall used the term during their time at Edwins, Respondent and Mrs. Williams were at Edwins prior to Respondent’s time at Choice. Thus, Proffer P-8a could not have put Respondent on notice that it was inappropriate for him to refer to Mrs. Williams as “baby-girl” while at Edwins. There is otherwise no competent evidence that Respondent referred to Mrs. Williams, or any other complainant, as “baby-girl” or any other nickname while at Choctaw. ALLEGED HARASSMENT OF A SCHOOL VOLUNTEER AND FAILURE TO FOLLOW DIRECTIVES NOT TO ENTER THE SCHOOL FRONT OFFICE AT CHOCTAW Harassment is governed by the School Board’s equity policy. Respondent acknowledged that he received a copy of the then existing Equity Policy in 2009. No evidence was presented as to what the Equity Policy consisted of in 2009. The Equity Policies presented at the final hearing reveal that two of the policies were adopted in 2015 and a third Equity Policy was adopted at the December 11, 2017, School Board meeting; the same School Board meeting where the superintendent’s recommendation to terminate Respondent was considered and approved. The alleged harassment of a school volunteer while at Choctaw appears to include encounters at football games, in the front office, and one time at Mrs. Williams’ home. Football Games The testimony at hearing revealed that Mrs. Williams was complaining about two encounters with Respondent at football games. Respondent’s duties at Choctaw required him to be present at football games. During the first encounter, Mrs. Williams and her son were in the stands watching a Choctaw football game. There is a fence that divides the stands. Respondent was on one side of the fence and he attempted to initiate a conversation with Mrs. Williams and her son. Respondent was saying “hello.” Mrs. Williams ignored Respondent and no conversation was undertaken. The second encounter occurred prior to a Pryor Middle School football game, which was taking place at Choctaw. Mrs. Williams, accompanied by her son, was setting up a parent- teacher organization table, and Respondent approached her and her son and initiated a conversation with her son. Mr. Hall knows Mrs. Williams’ son from his time at Edwins. Towards the end of the brief conversation, Respondent asked Mrs. Williams if he could speak with her for a “hot minute.” Mrs. Williams glared at him and then said “no,” and Respondent went about his way. Respondent presented credible testimony that a “hot minute” is slang for “a second” or “just for a minute.” There was no other evidence concerning the term “hot minute.” Front Office The email attached to Mrs. Williams’ Formal Complaint states that Respondent’s “approaching me at the front desk at Choctaw began to be a habit for Steve Hall.” The email further states that Mr. Hall was in the front office three times during the first month and a half of the 2017-2018 school year. In a separate email, Mrs. Williams documented an “encounter” that occurred on September 1, 2017. She does not indicate that Respondent had any contact with her, just that he was in the front office. In fact, on that occasion, Mrs. Williams turned her back to Respondent and Ms. Gloria Scaife, who was working in the front office, spoke with him. In an email, dated September 7, 2017, Ms. Scaife states that Respondent was in the office and asked her if she had seen Ms. Liz (who is the lead custodian). Respondent credibly explained that, on that occasion, he went to the front office to find his supervisor to obtain access to supplies. A second encounter in the 2017-2018 school year occurred in the mailroom. Mrs. Williams was in the mailroom when Respondent entered the room. Mrs. Williams testified that Respondent “cornered her in mailroom . . . that she couldn’t get around him . . . and that he was upset and very loud.” She further testified that she “could not move without touching [Respondent].” Mrs. Williams’ testimony conflicts with the other accounts of this encounter, which are more credible. Andy Snaith, dean of students for Choctaw, testified that there were other people in the mailroom and that he observed “what appeared to be a conversation with [Respondent] and Mrs. Williams. [Respondent's] back was to me. I believe he was doing the talking . . . .” When asked for more detail, Mr. Snaith stated: Q: And with other people in the mailroom, was there enough room, based on what you saw from Mrs. Williams, to back away from Mr. Hall? A: Yeah. It wasn't that crowded. Q: So there was plenty of room for her to move around? A: Yes. Q: Any idea what they were talking about? A: No. Q: How would Mrs. Williams get out of the mailroom, if she wanted to leave? A: There's two ways, I believe where she was standing, she could have gone to the left or to the right. The left is where the door that leads into the hallway, and then the other one leads to the main office. Consistent with the recollection of Mr. Snaith, Respondent testified that upon being told by Mrs. Sanders that Mrs. Williams was telling others that he was saying things to Mrs. Williams, he went to the office to ask Mrs. Williams if this was true. Respondent further testified: I asked [Mrs. Williams], calm and simple, [Mrs. Williams], have I talked to you, have I seen you? She said, no, I haven't seen you in three, four months. I said, that's all I wanted to know, because Liz is making a comment that I have said something to you and that was not true, and I walked away. It is unclear from the testimony as to exactly when this conversation took place, other than sometime early in the 2017-2018 school year. It is clear, however, that that occasion was the last time that Respondent was in the front office area at Choctaw. In her testimony, Mrs. Williams stated that she was not alleging or asserting that Mr. Hall had committed racial discrimination, nor that he made adverse remarks about her color, age, religious beliefs, ethnic origin, or marital status. And Mrs. Williams does not allege that Respondent made any comments about her body parts, the way her clothing fit, or asked to take photos of her while he was at Choctaw. Rather, those allegations allegedly occurred while Respondent was at Edwins, were unreported for years and could not be corroborated. There is no evidence that Respondent ever told Mrs. Williams to perform any improper act and then threatened her with consequences if she failed to comply. There is also no evidence that Respondent ever had authority to make employment decisions affecting Mrs. Williams. Mrs. Williams’ House Respondent first met Mrs. Williams prior to the time related in any of the allegations, when he went by her house to inquire about some tire rims that her husband had for sale. Mrs. Williams testified that in the summer of 2017, two weeks prior to the start of school, Respondent came by her house and parked at the curb. Her son alerted her that Respondent wanted to talk to her. She testified that she was upset because Respondent was there and she spoke with Respondent while he sat in his car. She could not recall what was discussed, but knows the conversation lasted only a couple of minutes, and that she then turned around and walked away.3/ Mrs. Williams stated that Respondent had been by her home on several different occasions but could not elaborate on any other incidents. Respondent acknowledged that he had gone by Mrs. Williams’ house because he does lawn service and was riding by her house. As he recalled, he noticed her son in the yard and asked him to get Mrs. Williams. Respondent and Mrs. Williams had a brief conversation. At no time during that conversation, or any other conversation, did Mrs. Williams tell Respondent to “stay away,” “leave me alone,” or make any other gesture or comment indicating that Respondent was to avoid her. Further, there is insufficient evidence to show that anyone from the School Board told Respondent to avoid contact with Mrs. Williams. Alleged Failure to Follow Directives Respondent acknowledged that shortly after starting at Choctaw, he had been verbally advised to avoid the front office. Mr. Mims, the School Board’s zone manager for custodial services, was the first person to advise Respondent to stay away from the front office. The Dean of Students Andy Snaith never told Respondent to avoid the front office. Even though told not to go to the front office, Respondent had to go by the front office every day. In that regard, Mr. Mims told Respondent that they could not keep him out of the school. Although Respondent understood that the request that he refrain from going to the front office may have been designed to minimize his contact with Mrs. Williams, there was no evidence or testimony presented by the School Board showing that Respondent was ever specifically told to avoid Mrs. Williams or why he was supposed to avoid the front office. Mr. Mims testified that he told Respondent to avoid the front office twice. He further testified that he was aware of Respondent being in the front office only three times over the course of three school years. When finding out about these situations, instead of having a face-to-face meeting, Mr. Mims would merely call Respondent on the phone. Respondent acknowledged going to the front office only twice in 2017, the first being while looking for Mrs. Sanders and the second being the conversation with Mrs. Williams when she was in the mailroom. There is no evidence of a written directive or other documentation advising Respondent to avoid the front office until a September 18, 2017, meeting between Respondent, Bill Smith, and Andy Mims. At that meeting, which was the first meeting between Mr. Smith and Respondent, Respondent was specifically advised to not go into the front office. Respondent has not been in the front office, nor has Bill Smith received a report that Respondent has been in the front office since their meeting in September 2017. Even though there were two instances where Respondent went to the the front office after speaking with Mr. Mims, Mr. Mims testified that while Respondent worked for him, he “met expectations as an employee.” Mr. Mims further testified that Respondent “did everything I asked him to do.” Mr. Mims statements are consistent with his written evaluations of Mr. Hall’s work performed in May 2017, May 2016, May 2015, and May 2014. The stated purpose of the evaluations is to “support decisions concerning employee discipline, promotion and improvement.” Respondent’s evaluations during the pertinent time period do not support the discipline sought in this case. To the contrary, they conclude that he is a hard worker and that he meets the expectations of his supervisors. Even when he allegedly received prior discipline while at Choice during the 2014-2015 school year, Respondent was not placed on a “success plan” for improvement and, in fact, received a “meets expectations” evaluation. The evaluations written by Respondent’s supervisors conclude that Respondent “Demonstrates a willingness to accept authority and direction; Demonstrates appropriate interactions with staff, clients, students and/or parents; Demonstrates appropriate oral skills when communicating with others; [and] Demonstrates appropriate relations with supervisor and peers.” Recognizing that there were issues at Choctaw unrelated to Mrs. Williams, Respondent requested transfers to another school. These transfer requests began during the 2016-2017 school year and continued during the beginning of the 2017- 2018 school year. Even though there were positions available in the schools where Respondent desired to transfer, his supervisor, Mr. Mims, denied Respondent’s requests for transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Okaloosa County School Board: Dismissing the allegations against Respondent in this case and rescinding any discipline imposed thereby; Reinstating Respondent’s employment with the Okaloosa County School Board as though there was no break in service of his employment; Restoring all salary, benefits, and rights from the date of his last paid workday to the date of his reinstatement, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law; less any earnings or benefits that Respondent received during the time between his termination and the time of his reinstatement. DONE AND ENTERED this 9th day of November, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2018.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue Whether just cause exists for the Petitioner's proposed non-renewal of the professional services contract under which the Respondent is employed.
Findings Of Fact From school year 1987-88 to school year 1990-91, and at all times material to this case, Respondent Aaron Ellis was employed as a guidance counselor by the School Board of Hendry County pursuant to a professional service contract. The professional services contract under which the Respondent was employed specifically provides that the Respondent may not be dismissed except for just cause as provided in Section 231.36(1)(a), Florida Statutes. Richard K. Shearer has been the Principal at Westside Elementary School since July 1989. At the time Shearer was assigned to Westside, the Respondent was on staff as a guidance counselor, but did not have regular classroom duties and was to respond to referrals from teachers of troubled students. Between August 7 and December 12, 1989, the Respondent placed 44 long distance telephone calls from his school office telephone. The calls, totaling 64.81 in tolls, were not school related. Westside Elementary School's Teacher Handbook specifically provides that long distance calls made from and charged to the school should be school related, and that permission must be obtained prior to such calls being made. On January 23, 1990, Principal Shearer discussed the inappropriate telephone use with the Respondent and informed him that reimbursement was required. Prior to this conversation, the Respondent had made no attempt to reimburse the school for the cost of the calls. By letter of January 26, 1990, Principal Shearer confirmed the conversation and stated that reimbursement was required by February 9, 1990. The letter, a copy of which was placed in the Respondent's personnel file, further states that, "[i]n the future, all long distance calls must be directly related to Westside Elementary school students, and must be logged completely and accurately with specific information as to who was called, what student it was in reference to, and the reason for the call." On April 4, 1990, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. Mr. Shearer discussed the evaluation with the Respondent who refused to sign the evaluation, but instead filed a separate response. Prior to completing the form, Mr. Shearer had observed the Respondent on an informal basis at least three times and had performed one documented formal observation. He also observed the Respondent in casual meetings with numerous students. In the evaluation, Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", "interpersonal relationships", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has some excellent qualities in the way he communicates with students. He also has some glaring weaknesses in making the most effective use of school time, in relating to fellow staff members including those in authority over him, in following generally understood office procedures. Improvement is necessary in these areas during the 1990-91 school years. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were unsatisfactory, the Respondent's employment contract could be non-renewed. Mr. Shearer was concern that the Respondent did not follow through on referrals by teachers of troubled students. He also believed the Respondent to be difficult to talk to and was somewhat distant from other staff. As to desired improvements in interpersonal relationships, the notice of desired improvement provided: Mr. Ellis does not work as effectively with other staff members as might be possible or desirable. He seems to have trouble or resent answering to those in authority over him.... Mr. Ellis needs to stay in closer contact with teachers and administrators as together they decide on strategies to help students needing counseling or referrals for possible E.S.E. staffing....Staff or small group meetings will be set up upon request to discuss staff relations and counseling procedures. Expectations of the Counselor will be fully discussed at the beginning of the new school year....Better staff relations will hopefully develop by the end of the 1990-91 school year. Mr. Shearer believed that the Respondent failed to spend adequate time assisting referred students. As to desired improvements in utilization of time, the notice of desired improvement provided: Mr. Ellis does not use his time as efficiently or as effectively as he might during the school day....Mr. Ellis needs to show more initiative in scheduling his time appropriately during the school day....Schedules may be provided or developed and/or a classroom assigned to help him achieve more contact with students in need of counseling. A log of counseling sessions may be put to use....Improvements are expected during the 1990-91 school year. Mr. Shearer was sometimes unable to locate the Respondent on-campus, sometimes due to the Respondent's alleged illness (notice of which was not timely provided), other times because the Respondent would leave the Westside Elementary campus or would walk to another school located on the same property with Westside. As to desired improvements in routine office procedures, the notice of desired improvement provided: Mr. Ellis does not follow normally accepted office procedures. He does not always call in when he is to be out for the day, does not discuss extended absences with his supervisor, misses too much time from work, and has had a problem with unauthorized long distance phone calls....Mr. Ellis will conform to normal office procedures that are expected of all staff members.... A full explanation of what is expected of Mr. Ellis will be given by the Principal during the week of pre-planning....These problems should be corrected immediately, but for certain by the end of the 1990-91 school year. By memorandum of April 19, 1990, the Respondent replied to Principal Shearer's April 4th assessment. The Respondent stated that he believed he worked effectively with other staff members and did not have trouble in working or answering to those in authority. He noted that there were no complaints from teachers related to him and that he had never refused to perform assigned tasks. He wrote that he believed his time to have been utilized efficiently, that he had not been made aware of any related problems prior to the evaluation, and that he was amenable to suggestions related to more effective use of time. The Respondent insisted that he followed routine office procedures, although he acknowledged one instance of absence without notifying superiors. He noted that the matter of the inappropriate telephone calls had been handled through the letter of January 26, 1990 (a copy of which had been placed in the Respondent's personnel file) and through the reimbursement for such calls. He concluded, "I believe that your formal assessment of my performance should have, for reasons cited above, rated me as "satisfactory" in all areas. I will, however, do all you find necessary in order to demonstrate my better-than-satisfactory performance as a counselor at Westside Elementary School." By letter dated April 20, 1990, Hendry County School Superintendent William C. Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being charged with unsatisfactory performance for the 1989-90 school year. The letter stated, "As provided in F.S. 231.36, you may request to meet with me or my designee for an informal review of the determination of unsatisfactory performance and/or request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the 1990-91 school year." The letter also stated that during the 1990-91 school year, the Respondent would "be provided assistance and inservice training opportunities to help correct the noted deficiencies" and that he would "be evaluated periodically to keep you apprised of progress." Although Principal Shearer was available to offer assistance or additional information related to the performance deficiencies, the Respondent demonstrated no interest in taking advantage of the available assistance, apparently because he did not agree with the evaluation. There is no evidence that the Respondent requested transfer to another position with a different supervising administrator. Thereafter, Mr. Shearer determined it necessary to provide a structured setting for the Respondent to perform his responsibilities. By letter dated June 21, 1990, Principal Shearer provided and outline of the guidance program he expected the Respondent to implement during the 1990-91 school year. The Respondent was assigned a permanent classroom for the school year which was designated as the "time-out or in-school suspension room" which was a part of the school's discipline program. "Disruptive" and "disinterested" students were to be referred to the Respondent's classroom. Such students would "benefit from more direct contact with the Guidance Counselor than we have been able to give in the past years." The Respondent was assigned three tasks related to the permanent classroom setting. He was to develop and maintain a record-keeping system for each child that included basic information, the reason for the referral to time- out, and "any notes on types of counseling or any progress made...." He was to "supervise and hopefully motivate students to keep up with their classwork while in time-out." Finally, he was to "use whatever opportunities that arise, individually or collectively, to counsel with students about the feelings or attitudes that led to their disruptive behavior or lack or (sic) classroom performance and ways to deal more appropriately with these feelings." The June 21 letter provided that the Respondent would "have a good deal of autonomy within your classroom, but it should be understood...that this is not a 'reward' or play time, or something to be looked forward to. The students will have no 'special area' privileges while in your room....The idea is total isolation from other students until dismissal time." The letter indicated that this job description was unusual for a school counselor, but that the program would permit the Respondent to have "much more direct contact with students who are having trouble succeeding in school." Concluding, the principal wrote that the plans were "subject to fine-tuning" as the year progressed, and that he welcomed the Respondent's input in the program. A memorandum from the principal went to all Westside Elementary teachers on or about August 22, 1990 which provided information on the Respondent's "time-out" classroom. The information in the memorandum was essentially similar to that in the June 21 letter to the Respondent. Between August 6 and August 17, 1990, the Respondent placed 7 long distance telephone calls from his school office telephone. The calls, totaling $17.25 in tolls, were not school related. By letter to the Respondent dated October 11, 1990, Principal Shearer wrote that, "...once again, in spite of my clear instructions to the contrary, you have charged personal telephone calls on our school telephone." The letter stated that "NO MORE personal calls are to be charged, by you, to our school phone! This is not a service available to you, or any other staff member." The Principal required immediate reimbursement and placed a copy of the letter in the Respondent's personnel file. The letter noted that continued noncompliance would result in more serious discipline being imposed. During the 1990-91 school year, Mr. Shearer often relieved the Respondent from the Time-Out room during lunch and planning periods, and had frequent contact with the Respondent. The Respondent was often observed sitting at the desk, his feet up on the desktop, reading a newspaper or book. Occasionally, the Respondent would be eating in the classroom. Additionally, there were complaints from the adjoining school that the Respondent took Time- Out students on walking tours around the other school campus, allowing them to purchase and eat snacks. Mr. Shearer believed the situation to be inappropriate, given that the Time-Out room was directed towards correcting inappropriate behavior, and spoke to the Respondent on several occasions about the situation, but the Respondent apparently did not believe the matter to be a problem. Mr. Shearer also encouraged the Respondent to discuss counseling concerns with highly-regarded staff from other schools and to attend relevant conferences, but the evidence fails to establish that the Respondent took advantage of such opportunities. On January 8, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The evaluation was reviewed by Shearer and the Respondent on January 18, 1991. The Respondent signed the evaluation. The Respondent's evaluation in the area of "interpersonal relationships" had improved to satisfactory. Mr. Shearer noted that the Respondent still required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was not noted. The comments section provided that: Some improvement noted in interpersonal relationships. Paperwork is very weak. Personal phone calls were made again this year on school phone and on school time against my direct instructions. Does not make use of available time with problem students in Time-out or with other students when counseling could be beneficial. Continues to miss entirely too much time from school. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were required by March 15, 1991 or that the principal would recommend non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Does not make best use of extended time with problem kids in Time-Out. Does not actively seek out students or opportunities to counsel. Does not adequately follow-up on students referred for counseling....Make school attendance a higher priority. Take the initiative in scheduling students for counseling, those in Time-Out, as well as others who are in need....Keep an active log of students counseled in Time-Out and at other times. Keep a daily "diary" of activities done and students worked with....All necessary forms and papers will be made available. An F.P.M.S. package on "Using Time Efficiently" will be provided. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork is very weak, and record-keeping is almost non-existent. Long-distance personal phone calls have been made on school phones and on school time after direct instructions to the contrary....Record-keeping must be more accurate and more detailed to document work done with and for students. Compliance with directives is mandatory. All calls on school phones will be school related!....Progress will be monitored closely....Assistance will be provided as needed and/or as requested....Notebook with updated forms to be filled out on each student in Time-Out and those counseled otherwise will be provided. Mr. Shearer provided the Respondent with materials appropriate to maintain records on counseling activities. There is no evidence that such materials were utilized or that the Respondent made any effort to address the performance deficiencies noted by Mr. Shearer. On March 26, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The Respondent refused to sign the evaluation. Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has made some improvements in his general attitude and has begun to have a little more student contact, but there is still much room for improvement. There are several major areas that are still unsatisfactory. At this time I am recommending that his contract not be renewed for the 1991-92 school year. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that the principal was recommending non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Still spends too much of his school day without direct contact with students. Has not been consistent enough on his follow-up of many of the children referred to him for counseling.... Must make school attendance a higher priority. Must show more initiative in meeting with students having problems. Initial contacts must be followed up and documented on a regular basis....Should meet with teachers on a regular basis to see what students are experiencing difficulties that he might be able to help with....Every consideration will be given to working out student schedules to allow maximum contact time with the Guidance Counselor. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork remains very poorly and sloppily done. Record-keeping is still very sketchy. Record-keeping must be more accurate and more detailed to document work done with students....Assistance will be provided as needed or as requested....Will continue to supply record books, calendars, files, etc. as may be needed to help keep organized and documented. By letter to Respondent dated April 11, 1991, Hendry County School Superintendent Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being notified that "your performance deficiencies have not been corrected. Further I am notifying you that you shall not be issued a new professional service contract for the next school year." The Time-Out program was continued through the remainder of the 1990- 91 school year, but was thereafter discontinued. Mr. Shearer assessed the program as having been unsuccessful, at least in part due to the lack of interest and negative attitude regarding the program by the Respondent, who believed the program to have been a punitive measure against him by Mr. Shearer. Guidance counselors in the Hendry County Schools are asked to "volunteer" 1/ to assist school officials in obtaining psychological and social histories of students who may be emotionally or environmentally handicapped. The practice is to seek out a counselor who is assigned to the same school as the student. The counselor interviews the child and family, and completes appropriate paperwork containing the relevant information. The forms are not complicated and do not require special expertise to complete. The counselor receives $20 for each complete history taken and $10 to update a previously taken history. The Respondent was asked and agreed to take the history of a specific Westside Elementary School student. Neither the student nor the family spoke English to the extent that the Respondent, speaking only English, would be able to conduct the interview. In such situations, interpreters may be used, but the interview is to be conducted by the counselor. The Respondent did not ask if he could use an interpreter and did not seek approval to give the interview assignment to another teacher. The Respondent asked Rosa M. Santana, a Spanish speaking second grade teacher at Westside Elementary, to perform the interview. He did not offer to compensate her prior to her performing the interview. On or about April 28, 1991, Ms. Santana interviewed the child and family. Ms. Santana took her mother, who speaks Spanish fluently, with her to the interview. The Respondent was not present when the interview was done. Ms. Santana completed the interview form and listed herself as the interviewer. Ms. Santana thereafter returned the interview form to the Respondent. He altered the interview form to identify himself as the interviewer and Ms. Santana as an interpreter. He then submitted the completed form and the bill for $20 to school officials as his charge for taking the student's social history. School officials became aware of the fact that the Respondent did not complete the interview, and paid the money to Ms. Santana rather than to the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Hendry County School Board enter a Final Order terminating the professional services contract of Aaron Ellis at the end of the 1990-91 school year. DONE and RECOMMENDED this 22nd day of November, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner and dated March 28, 2001, and, if so, the penalty that should be imposed.
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 Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida educator's certificates for violations of Section 231.2615, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Section 231.2615(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.2615(1), Florida Statutes. Mr. Colebrook holds Florida Educator's Certificate No. 296141. At the times material to these proceedings, Mr. Colebrook was employed as a teacher by the St. Lucie County public school system. Incident of December 21, 1988, and January 6, 1989, letter of reprimand. During the 1988-1989 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated January 6, 1989, then-principal James Sullivan admonished Mr. Colebrook for using profane language in a conversation with an assistant principal, Wayne Gent, outside the school cafeteria, and he noted in the letter that this conduct was a violation of school board policy. Mr. Sullivan did not personally observe the incident involving Mr. Colebrook and Mr. Gent, and his account of the incident was based on information provided to him by Mr. Gent.2 Mr. Sullivan stated in the letter that the December 21, 1988, incident was "not the first time [Mr. Colebrook] had used profane language in the workplace,"3 and, in his testimony at the hearing, Mr. Sullivan inferred from this statement that "there would have been other instances where that had occurred."4 Mr. Sullivan could not, however, recall during his testimony any specific incidents in which Mr. Colebrook had used profanity or any discussions he might have had with Mr. Colebrook regarding such an incident. The incident referred to in the letter of reprimand occurred on December 21, 1988, when Mr. Colebrook engaged Mr. Gent in a conversation about the athletic budget. Mr. Colebrook was upset about the budget, and he may have used profanity during the conversation,5 which lasted a couple of minutes. In his testimony, Mr. Gent declined to describe Mr. Colebrook as "irate" during the encounter. The conversation took place in the corridor outside the school cafeteria during a time when students were changing class, so that there could have been students in the area when the conversation took place. As noted above, the Commissioner charged Mr. Colebrook in paragraph 3 of the Administrative Complaint as follows: "In 1989, Respondent received a letter of reprimand from his Principal for allegedly using profane language outside of the high school's cafeteria. The profane language was directed toward an Assistant Principal and could be overheard by students." It is uncontroverted that Mr. Colebrook received a written reprimand that was placed in his personnel file. The factual allegations in paragraph 3 of the Administrative Complaint, liberally construed, are sufficient to allege not only that Mr. Colebrook received a written reprimand but also that he committed the acts attributed to him in the letter. However, the evidence submitted by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profanity or was irate during the conversation with Mr. Gent in December 1988. Mr. Sullivan's knowledge of the incident was second-hand, based solely on information received from Mr. Gent,6 and Mr. Gent's recollection at the hearing that Mr. Colebrook "may have" used profanity during the conversation does not rise to the level of clear and convincing proof. Furthermore, Mr. Gent's testimony describing Mr. Colebrook as "upset" during the conversation contradicts the description in the letter that he was "irate." Incident of March 14, 1990, and March 22, 1990, letter of reprimand. During the 1989-1990 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated March 22, 1990, then-principal James Sullivan notified Mr. Colebrook that an investigation had been conducted by Robert Hiple, an assistant principal at Fort Pierce Central High School, into events that allegedly occurred in Mr. Colebrook's classroom on March 14, 1990. In the letter, Mr. Sullivan reported the results of Mr. Hiple's investigation and relied on Mr. Hiple's conclusion, based exclusively on interviews with students, that Mr. Colebrook had used "profane language in [his] second period class on March 14, 1990."7 According to Mr. Sullivan, Mr. Hiple reported that "a consensus of the students" said that Mr. Colebrook said "'I'm not going to put up with this fucking shit, I'll beat your Mother-fucking ass.'"8 Mr. Sullivan also referred in the letter to information provided by Mr. Hiple that one of the students in Mr. Colebrook's class told Mr. Hiple that she was afraid to admit to Mr. Colebrook that she had accidentally flipped an object in class "after seeing [his] reaction and hearing [his] comments."9 The investigation to which Mr. Sullivan referred in his March 22, 1990, letter was initiated on March 15, 1990, when Mr. Hiple reported to Mr. Sullivan that a parent had complained that Mr. Colebrook had used profanity and threatened a student in the classroom. Mr. Sullivan asked Mr. Hiple to investigate the incident, and Mr. Hiple began by asking Mr. Colebrook for his version of the incident. Mr. Colebrook admitted that there had been an incident but denied using profanity or threatening a student or students, although he admitted that he may have said that "he was going to kick somebody's butt and he challenged a student and yelled at them."10 Mr. Hiple proceeded to gather information about the incident by interviewing students who had been in Mr. Colebrook's classroom at the time of the incident, and his testimony at the hearing was consistent with the information attributed to him by Mr. Sullivan in the letter of reprimand. Mr. Hiple did not testify from his personal knowledge of the incident. On or about March 16, 1990, Mr. Colebrook approached Mr. Hiple and asked about the investigation. Mr. Hiple advised him that Mr. Sullivan would discuss the results of the investigation with him. Mr. Colebrook became "a little loud and aggressive" during this encounter and stated that he did not want to discuss the matter with Mr. Sullivan.11 Mr. Colebrook did not "threaten [Mr. Hiple] physically or even verbally, but he was obviously upset and became loud in an open environment where students could hear."12 In the March 22, 1990, letter, Mr. Sullivan referred to the written reprimand issued to Mr. Colebrook in January 1989 for the use of profanity in the workplace, and he advised Mr. Colebrook that he was recommending to the school superintendent that he be suspended without pay for five working days and administratively transferred to another school for the 1990-91 school year. Mr. Sullivan based the recommendation that Mr. Colebrook be transferred to another school on Mr. Colebrook's comment to Mr. Hiple that Mr. Colebrook did not want to talk with Mr. Sullivan about the results of Mr. Hiple's investigation into the March 14, 1990, incident. In Mr. Sullivan's view, "it creates a difficult working relationship if a principal has a staff person who refuses to sit down and talk with him."13 Mr. Colebrook was suspended without pay for three days, but it was not clear from the record whether he was transferred for the 1990-1991 school year, as requested by Mr. Sullivan. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 4 of the Administrative Complaint as follows: On or about March 22, 1990, Respondent received a letter of reprimand while employed at Fort Pierce Central High School, for allegedly using profane and inappropriate language in class with his students. It was recommended that Respondent be suspended without pay for five days and transferred to another school. The suspension was reduced from five days to three days and Respondent was transferred to Woodland[s] Academy, in the St. Lucie County School District. It is uncontroverted that Mr. Colebrook received a written reprimand based on the conduct alleged in the March 22, 1990, letter from Mr. Sullivan and that Mr. Sullivan recommended in the letter that Mr. Colebrook be suspended without pay and transferred to another school. Giving the allegations in paragraph 4 of the Administrative Complaint the most expansive construction possible, they are sufficient to allege that Mr. Colebrook used "profane language in [his] second period class on March 14, 1990," as recited in the March 22, 1990, letter. However, the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profane language as related by Mr. Hiple in his testimony and by Mr. Sullivan in the letter of reprimand. Not only was Mr. Sullivan's knowledge of the incident second-hand, based solely on information received from Mr. Hiple, Mr. Hiple's knowledge of the incident was also second-hand, based solely on information provided to Mr. Hiple during interviews with some of the students in Mr. Colebrook's classroom on the day in question.14 The evidence presented by the Commissioner is, however, sufficient to support a finding that Mr. Colebrook used inappropriate language in front of the students of his second- period class on March 14, 1990, when he said "he was going to kick somebody's butt" and yelled at the students in his class.15 Mr. Colebrook's use of this language in front of students, while inappropriate, did not constitute gross immorality or involve moral turpitude, but it can be inferred from this conduct that Mr. Colebrook's effectiveness as a teacher was seriously reduced in 1990, when the incident took place, at least with respect to his effectiveness in teaching the students in the classroom at the time of his outburst. Because the Commissioner presented no evidence to establish that Mr. Colebrook directed his comment or his yelling to any particular student, the Commissioner has failed to establish that Mr. Colebrook embarrassed or disparaged any student during the incident of March 14, 1990. The evidence is, however, sufficient to establish that Mr. Colebrook's statement to his students that he was going to "kick somebody's butt" and his yelling at the students created a condition in the classroom harmful to the students' learning. Incident of May 8, 2000, Mr. Colebrook's use of profanity, and September 25, 2000, letter of reprimand. Mr. Colebrook was transferred to Woodlands Academy from Fort Pierce Central High School in either 1990 or 1991. During the 1999-2000 school year, Mr. Colebrook taught physical education at Woodlands Academy. In the afternoon of May 8, 2000, Mr. Colebrook was teaching a combined special education class and eighth grade class consisting of approximately 50 students. Toward the end of the class period, a student in the classroom spoke up and said to Mr. Colebrook: "You're a drunk son of a bitch."16 Mr. Colebrook thought it was the student T.S., and he told him to come to the front of the classroom, where Mr. Colebrook apparently intended to discipline him. T.S. did not obey Mr. Colebrook but, rather, slipped out of the classroom door. Mr. Colebrook did not leave the classroom to go after T.S., but he sent a student into the hall to bring him back into the classroom; the student reported that T.S. was not in the hall. About five or six minutes before the end of the class period, T.S. showed up in the office of Lee Haynes, Dean of Students at Woodlands Academy. T.S. told Mr. Haynes that Mr. Colebrook had sent him to the office. Since classes would change in a few minutes, Mr. Haynes decided to keep T.S. in his office until the bell rang, when he would send T.S. to his next class. Mr. Haynes and T.S. sat at Mr. Haynes' desk and talked.17 Just before time for the bell to ring, Mr. Colebrook walked into Mr. Haynes office. When T.S. saw Mr. Colebrook, he stood up and started moving away from him, around Mr. Haynes' desk. Mr. Colebrook moved toward T.S., placed his right hand on T.S.'s shoulder, asked why T.S. had called him a drunk in class, and gave T.S. a shove with the hand on T.S.'s shoulder. The shove was not hard enough to knock T.S. off balance, but, as a result of the shove and of T.S.'s simultaneous movement away from Mr. Colebrook, T.S. "tangled his feet"18 and fell down.19 Mr. Haynes noticed that there were two chairs in the area where T.S. fell, and he assumed that the chairs may have "aided [T.S.'s] fall."20 As Mr. Haynes helped T.S. get back on his feet, Mr. Colebrook made a motion toward T.S., and Mr. Haynes stood between Mr. Colebrook and T.S. Mr. Haynes then took T.S. to the principal's office, where Johnny Thornton, the principal of Woodlands Academy at the time, talked with T.S. T.S. was not injured as a result of the fall, but Mr. Thornton described him as "visibly upset, crying."21 Joseph Hover, a deputy with the St. Lucie County Sheriff's Office who was serving as a school resource officer at Woodlands Academy in May 2000, was a witness to the incident, and he arrested Mr. Colebrook on the afternoon of the incident for misdemeanor battery.22 The criminal case against Mr. Colebrook was concluded on August 21, 2000, when an entry was recorded on the court's progress docket that no information would be filed with respect to the charges against Mr. Colebrook. Several local newspapers printed stories about the incident and about Mr. Colebrook's arrest. Both students and teachers at Woodlands Academy had access to these newspapers, and some of the students at Woodlands Academy were observed actually reading the articles about Mr. Colebrook. In Mr. Thornton's estimation, other teachers at Woodlands Academy were aware of the incident, although Mr. Thornton tried to avoid discussing the incident with either the teachers or the students at Woodlands Academy. In a letter dated May 10, 2000, Mr. Colebrook was advised that an investigation into the May 8, 2000, incident would be conducted by the school system and that he was suspended with pay pending the outcome of the investigation. The final investigative report, dated September 7, 2000, was apparently submitted to the superintendent of schools for St. Lucie County, William Vogel, who prepared a formal letter of reprimand dated September 25, 2000.23 In the letter, Mr. Vogel identified two bases for the reprimand: "The act of pushing or throwing a student to the floor" and "[t]he use of profanity in the presence of students." Mr. Vogel did not identify the source of the information on which he based these charges, although it is inferred that the charges are derived from the investigative report. Mr. Vogel advised Mr. Colebrook in the letter that he would be suspended without pay for five days, that he would be required to complete "coursework in classroom management, stress control or other similar formal training/workshop," and that the complaint would be sent to the state Department of Education.24 After the May 8, 2000, incident, Mr. Colebrook was given an alternate assignment, and he returned to teach at Woodlands Academy in August or early September 2000 for the 2000-01 school year. Mr. Thornton was concerned when Mr. Colebrook returned to Woodlands Academy that some of his effectiveness as a teacher would be undermined by the students' knowledge of the May 8, 2000, incident, but there was no direct evidence that this was indeed the case. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 5 of the Administrative Complaint as follows: On multiple occasions while employed at Woodland[s] Academy, Respondent made inappropriate contact with a student in a violent and threatening manner, and continued to use profane and inappropriate language in front of his students. On May 8, 2000, Respondent threatened a minor student, T.S., pursued the student out of his classroom, and into the office of the Dean of Students at Woodland[s] Academy. In front of Lee Haines [sic], the Dean of Students at Woodland[s] Academy, and Deputy Joe Hover, the School Resource Officer, Respondent physically assaulted the minor student, T.S., by grabbing the student and throwing the student over two chairs, and onto the floor. Respondent then commented to Deputy Hover "This may cost me my job, but no student is going to call me drunk." Respondent was arrested and charged with battery as a result of the incident. The Commissioner has failed to present sufficient evidence to establish the allegations in paragraph 5 of the Administrative Complaint.25 Rather, the evidence presented by the Commissioner is sufficient only to establish clearly and convincingly (1) that, on May 8, 2000, Mr. Colebrook put his hand on T.S.'s shoulder and shoved him and that, as a result of this shove and of T.S.'s movement away from Mr. Colebrook, T.S. fell over two metal chairs in Mr. Haynes' office and (2) that Mr. Colebrook was arrested and charged with battery as a result of the incident. The evidence presented by the Commissioner is not sufficient to demonstrate that Mr. Colebrook's approaching T.S., placing his hand on T.S.'s shoulder, shoving T.S., and, at least in part, causing T.S. to stumble and fall over two chairs constituted gross immorality or involved moral turpitude. However, Mr. Colebrook's actions were harmful to T.S.'s mental health and safety even though T.S. suffered no physical injury. In addition, because he was upset and crying, Mr. Colebrook's actions exposed T.S. to embarrassment in front of Mr. Colebrook, Mr. Haynes, Deputy Hover, and Mr. Thornton. Accordingly, the evidence presented by the Commissioner is sufficient to establish that Mr. Colebrook violated two provisions of the Principles of Professional Conduct for the Education Profession in Florida. Finally, the appearance of news stories about Mr. Colebrook's arrest in the local press can reasonably support the inference that the students and teachers and the community in general were aware of the accusations against Mr. Colebrook with respect to the incident involving T.S. and of Mr. Colebrook's arrest. The Commissioner did not, however, present any direct evidence to establish that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the publicity, and such an inference cannot reasonably be drawn, especially since no information was filed against Mr. Colebrook. Mr. Colebrook's shoving T.S., though inexcusable, was not such egregious conduct that it would, of itself, give rise to an inference that his effectiveness as an employee of the St. Lucie County School Board was seriously reduced. In addition, in light of the fact that the Superintendent of Schools for St. Lucie County did not think it appropriate to remove Mr. Colebrook from the classroom, the Commissioner has failed to establish clearly and convincingly that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the May 8, 2000, incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Oringen E. Colebrook guilty of violating Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, and Section 231.2651(1)(i), Florida Statutes; dismissing Count I of the Administrative Complaint; and, placing Mr. Colebrook on probation for a period of three years, subject to such reasonable conditions as the Education Practices Commission deems appropriate. DONE AND ENTERED this 1st day of March, 2002, 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 1st day of March, 2002.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, 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, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. 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 alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint 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. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. 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. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, 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 accordance 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 Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). 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 the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. 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 use of physical restraint must be documented as part of the 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. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. 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. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, 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[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2002.
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
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.
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of July, 2013.
