Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee, on the basis that Respondent failed to satisfactorily and efficiently perform his assigned job duties, and/or he committed gross insubordination and willful neglect of duties.
Findings Of Fact The allegations against Respondent are set forth in the Petition for Termination of Employment (the Petition), dated August 7, 2008, and filed with DOAH on September 12, 2008. Respondent was employed as a custodian with the Lee County School Board (Petitioner) since January 12, 2000. He currently is assigned to Riverdale High School. The position of custodian is an educational support employee. Carl Steven Adams (Adams) is assistant principal for administration at Riverdale High School. He was responsible for all matters relating to the school maintenance, including supervision of custodians. Adams prepared Respondent's annual performance assessment for each of the 2005-2006, 2006-2007, and 2007-2008 school years. Adams scored Respondent's performance in the 2005-2006 year as achieving an effective level of performance, the highest possible score, in all 28 areas targeted for assessment. For the 2006-2007 and 2007-2008 school years, Respondent worked the evening shift and was assigned to clean the gym, the boys' locker rooms, the band room, the chorus room, three portable classrooms, the agricultural hallway, the football restrooms, and a portion of the cafeteria. During the 2007-2008 school year, after Respondent requested assistance, he was relieved of cleaning the boys' locker rooms and was assigned eight additional portable classrooms. For the 2006-2007 school year, Adams scored Respondent as achieving an effective level of performance in 18 of the 28 areas targeted for assessment, including "completes requests and directives in a timely manner," "begins tasks with minimum of direction," "maintains continuous workflow," and "takes advantage of available training opportunities." Respondent received a lower score of "focus for development/feedback" in ten areas targeted for assessment. Those areas that needed improvement included "effectively plans, schedules and controls work"; "completes a reasonable amount of work in a timely manner"; and "seeks to improve quality and efficiency of work." Adams testified that he did not score Respondent as performing at an "unacceptable level of performance observed," because he did not have any written documentation to that effect. On September 4, 2007, Respondent was issued a "letter of warning regarding allegations of incompetence in reference to your job," which "directed [him] to pay closer attention to [his] assigned job duties, ask for assistance when needed, and ask for instructions and guidance in defining [his] job duties." No evidence of documented performance deficiencies relating to Respondent was offered in evidence for the first semester of the 2007-2008 school year. The Petition and Joint Pre-hearing Stipulation listed only alleged performance deficiencies commencing on or after January 7, 2008. On January 7, 2008, Respondent was charged with failing to perform his duties as instructed after allegedly being instructed by his supervisor to clean the restrooms at the football field. Respondent's immediate supervisors were the building supervisor and head custodian, neither of whom testified at the hearing. Respondent testified that he indeed had cleaned the restrooms twice that day, but the attendees at a swimming meet on that date used the facilities and "messed" them up. Respondent's testimony was credible. On January 10, 2008, Respondent is alleged to have been instructed to clean the cafeteria, in preparation for an open house that evening, and failed to perform the duties as instructed. Upon entering the main building after cleaning his assigned portable classrooms, Respondent was notified of the open house. Respondent testified that he and the other custodians were informed of the open house only one hour before the commencement of the event. The lunch tables had been pushed into his designated area so the other custodians could complete cleaning their respective sections of the cafeteria. He therefore had to wait for the removal of the tables before he could attend to his section. He hurriedly attempted to clean his area, but was not afforded sufficient time to properly clean the area before the entry of the public. On January 25, 2008, Respondent was charged with failing to perform his duties as instructed after the school athletic director allegedly instructed Respondent to clean the gymnasium, locker rooms, and lobby restrooms in preparation for a wrestling tournament. As with the building supervisor and head custodian, the athletic director did not testify at the hearing. Respondent, however, testified that he had cleaned the gym, locker rooms, and lobby restrooms. However, participants and others at a dance and/or choir event remained past the end of Respondent's shift at 11:00 p.m. and left the lobby and restrooms a mess. This resulted in the restrooms not being presentable to the public. On March 18, 2008, Respondent was charged with having failed to clean one of his regularly assigned areas: the agricultural hallway. Respondent testified that it is difficult to keep this hallway clean, because it has a door at the end that opens to the outdoors and leaves and debris blow into the hallway when there is a draft. The hallway also is located by the varsity athletes' locker room; foot traffic from the locker room to and from the playing fields can contribute to the hallway appearing messy even after its been cleaned. Respondent testified that he was only responsible for the tiled section of the hallway and that he regularly cleaned it. Adams conceded that he was only told of Respondent's alleged failure to clean the hallway and did not independently verify the charge. Adams also acknowledged that March 18, 2008, was a Tuesday night. Tuesday nights are usually very active at the school, during that time of year. It was entirely possible that Respondent had cleaned the hallway and that foot traffic from the varsity athletes' locker room could have caused it to become dirty. On March 19, 2008, Adams personally found the restrooms on the south end of the football field "too disgusting to be opened for the lacrosse game." Respondent testified that these restrooms are supposed to remain locked and be cleaned only as needed. However, periodically people access them and leave the facilities dirty. Respondent discussed the problem with Adams, and he was assured the restrooms would remain locked. On March 19, 2008, Respondent had not been informed that there was a scheduled lacrosse game, and, thus, was unaware of the need to check on the condition of the restrooms. Adams did not know whether anyone had, in fact, notified Respondent of the scheduled lacrosse game. On March 24, 2008, Respondent received a letter of reprimand from Adams recounting the foregoing alleged performance deficiencies on January 7, 10, and 25; and March 18 and 19, 2008. The following day, Adams presented Respondent with his 2007-2008 annual performance assessment, scoring Respondent as unacceptable in four areas targeted for assessment. It included: "begins tasks with minimum direction," "seeks to improve quality and efficiency of work," and "inconsistently practiced" in ten areas targeted for assessment. It also included: "completes a reasonable amount of work in a timely manner," "achieves expected results with few errors," and "completes requests and directives in a timely manner." The letter of reprimand, issued the previous day, furnished the requisite documentation for Adams to give Respondent a poor performance assessment for the year. Adams' testified that Respondent's letter of reprimand, delivered to Respondent one day before the negative performance assessment, was "coincidental." The letter of reprimand Respondent received March 24, 2008, cautioned Respondent that "[f]rom this point forward, you are to follow all directives given to you by your supervisors. Failure to comply with these directives will result in disciplinary action up to and including dismissal." Adams failed to contemporaneously notify Respondent of the now documented performance deficiencies, thus, preventing Respondent a timely opportunity to rebut the charges or remediate his performance. In the second semester of the 2007-2008 school year, Nancy Bell (Bell) sent Adams a total of six e-mails complaining about Respondent's work performance in her room, two of which were on successive days regarding the same complaint and three of which were in the course of one week in March. Bell directed her e-mail complaints about Respondent's performance solely to Adams and did not notify Respondent or his immediate supervisors about her complaints. Bell testified that she was instructed by Adams to follow this protocol. On April 24, 2008, Respondent was provided a letter of reprimand dated April 23, 2008, that outlined the following issues with his performance: Bell's classroom was not cleaned; Respondent was sleeping in the custodial room on April 16, 2008, at 9:15 a.m.; and Respondent's job performance has been below the standards required by the school and Petitioner. In this letter of reprimand, Adams wrote that he had "received six e-mails from one of the teachers in a classroom in your area of responsibility that describe unclean conditions and unsatisfactory work being done by you." Adams previously instructed the teachers at the school that if they had any concerns regarding the cleanliness of their room, they were to e-mail him. Bell is the only teacher to register a complaint with Adams about Respondent's work performance in her classroom, even though Respondent had the responsibility for cleaning three classrooms initially during the 2007-2008 school year and eight additional classrooms when he was relieved of cleaning the boys' locker rooms. Adams never spoke with Respondent about Bell's complaints until he presented the letter to Respondent on April 24, 2008. Although two of Bell's complaints predated his delivery of the first letter of reprimand to Respondent, Adams neglected to reference either of those complaints in the initial letter of reprimand. At the time, Adams simply referred Bell's complaints to the building supervisor and head custodian and relied on those individuals to address the matter with Respondent. Adams does not know when, or if, they did so; nor does he know whether Respondent was ever shown the e-mails prior to April 24, 2008, and, thus, had an opportunity to address her concerns. The evidence presented by Respondent satisfactorily explained the complaints received by Adams in regard to Respondent's performance of his duties on February 12, March 24, March 26, March 28, and April 10, 2008. The April 23, 2008, letter of reprimand also accused Respondent of having been discovered by his supervisor sleeping at 9:15 a.m. during spring break in 2008 when he was working daytime hours. Petitioner did not present any evidence to substantiate this charge, and Respondent vehemently denied ever sleeping on the job. Petitioner failed to prove this charge. There were occasions when upwards of three custodians would be absent from work. The custodians reporting for duty would have to clean the absent custodians' areas. Consequently, they would have less time to devote to their regularly assigned areas. Petitioner did not establish whether the custodial staff was always at full strength on the occasions when Respondent is accused of performing less than an adequate job of cleaning. Petitioner's investigator, Craig Baker (Baker), conducted a tour of the areas assigned to Respondent. He testified that he performed his inspection on Tuesday, May 20, 2008, at approximately 5:30 a.m., when the school was first opened and there had not been any activity in the school following the conclusion of the custodians' shift from the night before. He documented Respondent's alleged performance deficiencies with a digital camera. Due to his unfamiliarity with the operation of the camera, the photographs were of poor quality, and Petitioner elected not to introduce them into evidence. Baker detailed the results of Respondent's assigned work area. Baker testified that there was loose dirt and paper along the baseboard in the gym and that "it appeared that it had not been swept or cleaned from the evening or the day before." In the restrooms adjacent to the gym he noted "there was one toilet that had unflushed feces. It had not been flushed from the night before." Baker testified that, although the band room "looked adequately clean," he observed that in Bell's classroom there was "paper underneath one of the desks," "old gum stuck on the back of a desk," and "dust along the area adjacent to a computer that had not been dusted in some time, it appeared to me." Baker testified that, in the lunchroom, he observed "[s]everal trash cans that had not been emptied from the day before. They had trash in it, paper from food goods, things like that." Finally, Baker testified that he saw, "primarily in the hallway where the lockers were, one particular area there was [sic] loose screws where a maintenance worker had been doing some work that had not been cleaned for several hours, students could trip on them." Based on this inspection, Baker concluded that Respondent's work performance had not improved from the year before. However, Baker admitted on cross-examination that, based on the date stamped on the photographs he took while conducting his tour of Respondent's areas, the actual date of his inspection was Monday, May 19, 2008, at 5:30 a.m. He acknowledged that Respondent's last work shift preceeding the inspection was Friday, May 16, 2008. Baker did not know what athletic events or activities occurred at the school over the weekend. He admitted that the feces in the toilet could have been placed there after Respondent completed his shift on Friday and before Baker conducted his tour. He was unable to state whether the other deficiencies he noted were the consequence of people being in the building or activities occurring over the weekend. Charles Drayton, a custodian at the school for six or seven years, testified that, during the 2007-2008 school year, he stood in as acting head custodian when Floyd Davison, the head custodian, was absent. He explained that when he was acting head custodian, and it was necessary to clean the area of another custodian who was sick or absent, he would have all the custodians assemble at the absent custodian's assigned area and clean it en masse before returning to their individual job assignments. He testified that on those occasions Respondent did a good job and that he performed with the same level of professionalism as every other custodian. Charles Drayton's testimony was credible. Respondent was assigned to clean the large areas in the school that had a lot of foot traffic. In regard to the difficulties Respondent experienced cleaning the boys' locker rooms, it is not uncommon for a custodian to clean the locker room, complete his shift, and leave only to have the athletes return from a game and "make a mess of it" resulting in his supervisor accusing him of not cleaning the area. There are a number of athletic events and other activities at the school that extend past the 11:00 p.m. termination of the custodians' shift. For both the 2006-2007 and 2007-2008 school years, Respondent was responsible for cleaning the agricultural hallway, cleaning the bleachers, as well as cleaning the locker rooms. These are high foot traffic areas. With athletic events not concluding until 10:00 p.m. or later, and athletes returning from away games following the conclusion of Respondent's shift, Respondent would be pressed for time to thoroughly clean those areas or would have already cleaned them only to have them appear to be messy, even after they have been cleaned. Since Respondent commenced working for Petitioner, he received one probationary performance assessment and nine annual performance assessments. With the exception of his last two years at Riverdale High School, i.e., the 2006-2007 and 2007-2008 school years and one year at Franklin Park Elementary School in the 2004-2005 school year, Respondent scored at an "effective level of performance" in all areas targeted for assessment. There was no probable cause for disciplinary action against Respondent for alleged incompetence in the 2004-2005 school year at Franklin Park Elementary School. Petitioner rescinded Respondent's dismissal and placed Respondent at Riverdale High School for the 2005-2006 school year. In Respondent's probationary and 1999-2000 annual performance assessments, Respondent's supervisor wrote favorable comments in the comments section regarding Respondent's performance. In his succeeding three years at Bayshore Elementary, his supervisor also wrote favorable comments on his 2000-2001, 2001-2002, and 2002-2003 annual assessments. Two classroom teachers at Riverdale High School, Michael Skocik and Christy Danielson, testified that they were very satisfied with Respondent's work performance during the 2006-2007 and 2007-2008 school years, and that he kept their classrooms clean. The evidence is insufficient to constitute just cause to terminate Respondent's employment. Petitioner did not call as witnesses Respondent's supervisors, the building supervisor, and head custodian, nor did it call the athletic director, to refute Respondent's testimony that he complied with their directives and satisfactorily performed his assigned job duties within the constraints presented by the unique nature of his job assignment. The greater weight of evidence established that Respondent satisfactorily and efficiently performed the large majority of his assigned job duties and that Respondent had a reasonable explanation and justification for those of his admitted deficiencies. Petitioner did not prove by a preponderance of evidence its charge that Respondent committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code Rule 6B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits to September 10, 2008. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009. COPIES FURNISHED: James W. Browder, Ed.D. Superintendent of Schools The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966
The Issue The issue presented is whether a rule establishing high school attendance zones is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Respondent is the School Board of Orange County, Florida (School Board). The School Board is an educational unit and an agency defined in Subsections 120.52(1)(b)7. and (6), Florida Statutes (2004). Respondent is the governing body of the Orange County School District (School District or District). In relevant part, Respondent has exclusive constitutional authority to "operate, control and supervise all free public schools" within the District pursuant to Article IX, Section 4(b) of the Florida Constitution (2004) (Florida Constitution). On January 11, 2005, Respondent adopted a rule establishing attendance zones for four high schools in western Orange County, Florida (Orange County). The rule modifies previously existing attendance zones for Apopka High School (Apopka), Olympia High School (Olympia), and West Orange High School (West Orange); and establishes a new attendance zone for Ocoee High School (the relief school). It is undisputed that the establishment and modification of school attendance zones involves rulemaking. The parties agree that the adoption of the relevant school attendance zones satisfies the definition of a rule in Subsection 120.52(15), Florida Statutes (2004). Petitioners challenge the rule as an invalid exercise of delegated legislative authority defined in Subsection 120.52(8), Florida Statutes (2004). In relevant part, Petitioners allege that Respondent violated Subsections 120.52(8)(a) and (e), Florida Statutes (2004), by materially failing to follow applicable rulemaking requirements and by adopting a rule in an arbitrary and capricious manner. Before proceeding to the merits of the rule challenge, it is important from a jurisdictional and contextual perspective to note that this Final Order does not reach any matter that falls within the scope of Respondent's exercise of constitutional authority. For reasons discussed in the Conclusions of Law, Respondent has exclusive constitutional authority to operate, control, and supervise public schools within the District (local control). The Legislature has constitutional authority over matters of statewide concern.2 The Legislature cannot statutorily delegate authority that is constitutionally vested in Respondent.3 For purposes of the rule challenge, the exercise of constitutional authority by Respondent is not the exercise of delegated legislative authority within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). As a factual matter, the challenged rule involves local control of only those public schools within the District that are affected by the rule. The school attendance zones do not have application beyond the boundaries of the School District. The school attendance zones do not benefit or otherwise affect citizens of the state outside the District.4 The trier of fact has avoided findings concerning matters of local control, including the merits of the school attendance zones, the wisdom of the collective decision of the School Board, and the motives and intent of the individual members of the School Board. Jurisdiction to determine the invalidity of a rule involving matters of local control is the exclusive province of the courts.5 Legislative authority over matters of statewide concern includes the authority to ensure that local school attendance zones are drawn in a manner that complies with uniform requirements for fairness and procedural correctness. The Legislature delegated that authority to Respondent when it enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida Statutes (2004). The trier of fact has made only those findings needed to determine whether the exercise of delegated legislative authority is invalid within the meaning of Subsections 120.52(8) and 120.56(1), Florida Statutes (2004). The challenged rule affects the substantial interests of Petitioners within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). Petitioner, Citrus Oaks Homeowners Association, Inc. (Citrus Oaks), is a Florida nonprofit corporation, organized as a homeowners' association pursuant to Chapters 617 and 720, Florida Statutes (2004). The members of Citrus Oaks own residences in the Citrus Oaks subdivision. A substantial number of the members of Citrus Oaks are substantially affected by the challenged rule. A substantial number of members have children who are students in a public school affected by the challenged rule. The challenged rule reassigns many of those students from the Olympia school zone to the West Orange school zone. The subject matter of the rule is within the general scope of interest and activity of Citrus Oaks. The relief requested is of a type that is appropriate for Citrus Oaks to receive on behalf of its members. Citrus Oaks has represented its members in previous litigation, although this is the first administrative proceeding for Citrus Oaks. More than a substantial majority of the members of Citrus Oaks expressly authorized Citrus Oaks to undertake this proceeding for their benefit. Petitioner, Joy Hutchison, is the mother of Jamie Petkov and Kirsta Petkov. Mrs. Hutchinson and her children reside in Citrus Oaks in a neighborhood identified in the record as Gotha, Florida. At the time of the administrative hearing, Jamie Petkov and Kirsta Petkov attended Gotha Middle School (Gotha). Jamie Petkov and Kirsta Petkov would have attended Olympia in the absence of the challenged rule. The challenged rule changes the attendance zone of each student to West Orange. The challenged rule splits feeder patterns intended to ensure that students in adjacent neighborhoods stay together through progressive grades. The challenged rule assigns some students from Gotha to the Olympia school zone and assigns other Gotha students to the West Orange school zone. Differences in West Orange and Olympia do not affect the substantial interests of Petitioners. The two schools offer comparable, but not identical, educational programs. Each school is accredited by the Southern Association of Accreditation. Each is a comprehensive high school with a full range of academic opportunities for students and Advanced Placement (AP) classes for college credit. Each school offers comparable student-teacher ratios, teachers with advanced degrees, and extracurricular activities. West Orange and Olympia are not identical. Homebuyers generally prefer Olympia to West Orange. Area realtors emphasize location within the Olympia school zone as a marketing feature for homes. Prospective homebuyers generally request homes within the Olympia school zone. Approximately 100 students residing outside the Olympia attendance zone have falsified their domicile information in order to enroll in Olympia. Disparities between West Orange and Olympia do not deny Petitioners a uniform system of education. A uniform system of education does not require uniformity among individual schools in physical plant, curricula, and educational programs.6 The rule development process that culminated in the challenged rule began sometime in March 2004. Three staff members in the District office of the Director of Pupil Assignment (the Director) were responsible for recommending school attendance zones to the Superintendent and his cabinet. The Director and her staff pursued negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). In March 2004, the staff began to establish relevant time lines. In April and May of the same year, staff met with principals of schools potentially subject to rezoning. Staff requested each school principal to submit the names of three individuals to serve on a school rezoning committee to work with the staff. Each school rezoning committee was comprised of the "PTSA president, SAC chairperson, and another member." Each school rezoning committee was a negotiating committee within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). Each school rezoning committee was a balanced committee of interested persons who drafted complex rules in anticipation of public opposition. Each committee worked in good faith to develop group consensus for a mutually acceptable proposed rule. The Director and her staff provided packages to each school rezoning committee. The packages included information concerning time lines; rezoning criteria; maps; demographic information about neighborhoods; transfer policies; transportation; and school data such as demographics, enrollment, and original design capacity. Each committee developed proposed attendance zones based on eight rezoning criteria prescribed in the packages. The eight rezoning criteria are identified in the record as: operate under the current desegregation order; consider future planning and growth of attendance zones; equally distribute population to balance facility use of affected schools; consider reducing student transportation distances, when necessary; maximize the number of students walking to school; maximize the school feeder pattern structure; minimize the disruption of residential areas; and ensure demographic balance, when possible. Each committee was required to give overriding importance to the first three of the eight criteria. The school rezoning committees produced approximately 11 initial proposals. The Director and her staff scrutinize various proposals and received citizen input during three public meetings on August 25 and October 5 and 25, 2004. Each public meeting was a rule development workshop within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004). Approximately 600 members of the public attended the first workshop conducted on August 25, 2004. Many members of the public spoke at the meeting or provided written input concerning the various proposals. Staff and committee members considered the public input and scrutinized the proposals. Staff reduced the number of proposals to seven, identified in the record as options A through G, and conducted a second workshop on October 5, 2004. Between 400 and 500 members of the public attended the second workshop. As the meeting "wore on," the Director concluded that no consensus on a single proposal was attainable at that time and adjourned the meeting. After the second workshop on October 5, 2004, the staff developed one recommendation for rezoning and two best options identified in the record as the recommendation, option A, and option F. Staff presented the recommendation to the Superintendent at a cabinet meeting, but also included, for informational purposes, the two options. Attendees at the cabinet meeting included "area superintendents," the chief financial officer, the chief facilities officer, the chief operations officer, and the deputy superintendent for curriculum instruction. The Superintendent and his staff vetted the recommendation before the recommendation was presented to the public as the "Staff Proposal" during a third workshop conducted on October 26, 2004. Approximately 500 members of the public attended the third workshop. The Director presented the Staff Proposal and received public input. The Staff Proposal reassigns 435 students from Apopka to the relief school; 136 students from Olympia to West Orange; and 2,315 students from West Orange to the relief school. The Staff Proposal does not rezone students in Citrus Oaks from Olympia to West Orange. There was no discussion at the third workshop of rezoning options other than the Staff Proposal. It is undisputed that Respondent complied with applicable rulemaking procedures from the initiation of the rulemaking process, through the third workshop conducted on October 25, 2004, when staff presented the Staff Proposal. The alleged violations of applicable rulemaking procedures occurred from October 26, 2004, through January 11, 2005. During that interval, Respondent amended the Staff Proposal and adopted the challenged rule. From October 26 through November 29, 2004, Mrs. Karen Ardaman, a member of the School Board, conducted several non- public conferences with the Director and her staff. The non- public conferences were workshops conducted for the purpose of rule development within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004) (private workshops). The private workshops did not involve negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). The private workshops were conducted between a member of the School Board and District staff for the official business of rule development. Mrs. Ardaman stated to the Director and her staff that the purpose of the private workshops was to "tweak" the Staff Proposal. Mrs. Ardaman expressed a specific goal of rezoning at least 300 students from Olympia and an optimal goal of reducing Olympia enrollment to design capacity, if possible. The workshops were extensive and produced four "work-up" proposals identified in the record as Petitioner's Exhibits 20 through 23. One of the work-up proposals was adopted by Respondent as the challenged rule on January 11, 2005.7 Each private workshop included "what-if" questions from Mrs. Ardaman to staff members intended to scrutinize alternative school rezoning scenarios. Each scenario involved specific neighborhoods, the demographic breakdown for the neighborhood, the actual number of students, and the number of students to be reassigned. One work-up extended the West Orange zone to an area north of State Road 50. Another work-up reduced the Apopka enrollment from 4,265 to 3,830, or approximately 650 students over design capacity of 3,187. The private workshops included conversations regarding the use of permanent modular classrooms to relieve overcrowding at Olympia. Mrs. Ardaman requested staff to explore the possibility of adding permanent modular classrooms. On November 30, 2004, the Superintendent published in an area newspaper of general circulation a Notice of School Board Meeting scheduled for December 6, 2004. In relevant part, the notice stated that the purpose of the meeting is to discuss "West Orange Apopka Relief School Rezoning." The public meeting conducted on December 6, 2004, was a rule development workshop within the meaning of Subsection 120.54(2), Florida Statutes (2004). The School Board considered the Staff Proposal and the Ardaman alternative (the alternative proposal). The alternative proposal was circulated to the other members of the School Board. Two members left the workshop early. The remaining five members, including Mrs. Ardaman, reached consensus to reject the Staff Proposal and to advertise the alternative proposal as the proposed rule. On December 11, 2004, the Superintendent published a Notice of Proposed Action on High School Attendance Zones in The Orlando Sentinel. The public notice advertised a public hearing scheduled for January 11, 2005, to adopt the proposed rule. That portion of the public notice entitled, "Summary of Proposal" states, in relevant part, that the proposed rule reassigns students residing in Citrus Oaks from Olympia to West Orange. The meeting conducted on January 11, 2005, was a public hearing within the meaning of Subsection 120.54(3)(c)1., Florida Statutes (2004). Members of the School Board adopted the proposed rule by a vote of four to three. Mrs. Ardaman voted with the majority. The private rule development workshops between a school board member and District staff failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004). Respondent provided no public notice of the private workshops. Respondent failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004), for the rule development workshop that Respondent conducted in public on December 6, 2004. The notice published on November 30, 2004, was less than 14 days before December 6, 2004. The published notice did not include an explanation of the purpose and effect of either the Staff Proposal or the alternative proposal. The published notice did not cite the specific legal authority for either proposal and did not include the preliminary text of each proposal. Respondent failed to comply with other rulemaking procedures prescribed in Subsection 120.54(2)(c), Florida Statutes (2004). Respondent precluded public participation during the rule development workshop on December 6, 2004. Therefore, the persons responsible for preparing the respective proposals did not explain either proposal to the public and were not available to answer questions from the public or to respond to public comments. The failure to comply with applicable rulemaking procedures is presumed to be material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). § 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts to Respondent to rebut the presumption. Id. Respondent did not rebut the presumption with evidence that the fairness of the proceeding was not impaired or that the proceeding was procedurally correct. Respondent did not show that it cured the materiality of the failure to comply with applicable rulemaking procedures (procedural errors) by satisfying other rulemaking requirements such as those in Subsection 120.54(3)(e), Florida Statutes (2004). After December 11, 2004, when Respondent published the notice of proposed agency action to adopt the proposed rule, Respondent did not show that it filed a certified copy of the proposed rule with the agency head, together with other relevant materials, for public inspection. For reasons stated hereinafter, the public hearing conducted on January 11, 2005, did not cure the materiality of prior procedural errors. A preponderance of evidence shows the failure to comply with applicable rulemaking procedures was material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). The procedural errors impaired the fairness and procedural correctness of the development and adoption of the challenged rule. In relevant part, the failure to provide public notice of the private workshops deprived members of the School Board and the public from equal participation, an opportunity to scrutinize various scenarios, and an opportunity for input and comment. The private workshops circumvented six months of prior negotiated rulemaking and public workshops between District staff, rezoning committees, the public, and the Superintendent and his cabinet; and reduced the public process to a shell into which non-public decisions were later poured. The public notice advertised on November 30, 2004, was inadequate. The notice deprived interested members of the School Board and the public of prior notice that the scope of the workshop on December 6, 2004, would include rezoning proposals not addressed in previous public workshops. The procedural errors materially changed the Staff Proposal and materially affected some students not assigned to Olympia in the Staff Proposal. For example, the Staff Proposal decreases Olympia enrollment, through reassignment of students to West Orange, by 136 students; or approximately four percent of the 3,337 students enrolled in Olympia on October 15, 2004; and approximately three percent of the 3,410 students projected to be enrolled in Olympia in the next school year (the 2005-2006 school year). The challenged rule decreases Olympia enrollment by 285 students. That is more than twice the decrease in enrollment in the Staff Proposal. The challenged rule decreases enrollment at Olympia by approximately eight percent of the 3,332 students enrolled in Olympia on November 15, 2004; and approximately eight percent of the projected enrollment of 3,410 for the following school year. The procedural errors materially impact the original design capacities at Olympia and West Orange. The original design capacities at the respective schools are 2,781 and 3,195 students. The enrollment at Olympia on October 15, 2004, in the amount of 3,337 students, exceeded original design capacity by 556 students (overcrowding), or approximately 19.9 percent. The enrollment at West Orange on the same date, in the amount of 4,320 students, exceeded original design capacity by 1,035 students, or approximately 32.4 percent. The Staff Proposal reduced overcrowding at Olympia to 420 students, or approximately 15.1 percent of original design capacity; and added 136 students to West Orange enrollment, or approximately 4.2 percent of original design capacity at West Orange. Based on enrollment on October 15, 2004, the challenged rule decreases overcrowding at Olympia to 271 students, or approximately 9.7 percent of original design capacity; and adds 285 students to the West Orange enrollment, or approximately 8.9 percent of original design capacity.8 The materiality of the procedural errors is exacerbated by the scheduled loss of the Ninth Grade Center at West Orange in the 2005-2006 school year. That event will reduce actual capacity at West Orange from the original design of 3,195 students to 1,993 students. This is a capacity loss of 1,202 students. The challenged rule adds 285 students to West Orange enrollment next year, which is an increase of approximately 14.3 percent over actual capacity. The Staff Proposal adds 136 students to West Orange enrollment, which is an increase of approximately 6.8 percent over actual capacity. The Staff Proposal and challenged rule leave West Orange with 2,236 and 2,385 students, respectively, or approximately 243 and 392 students over next year's actual capacity of 1,993 students. Overcrowding at West Orange from the Staff Proposal is approximately 12.19 percent of actual capacity next year, and overcrowding from the challenged rule is approximately 19.66 percent of actual capacity. The Staff Proposal reduces overcrowding at Olympia next year from 19.99 percent to 15.1 percent over capacity and leaves overcrowding at West Orange over 12.19 percent. The challenged rule reduces overcrowding next year at Olympia from 19.99 percent to approximately 9.7 percent and leaves overcrowding at West Orange at 19.66 percent over actual capacity. The procedural errors facilitated a challenged rule that departs materially from recommendations by the Olympia rezoning committee. The rezoning committee recommended no change at the school. In relevant part, the committee wrote: While we recognize that Olympia remains overcrowded, aggressive, proactive measures should be taken to address overcrowding of Olympia in other ways. Specifically those measures include: Exploring the possibility of adding "permanent" modular structures; and Increasing efforts to remove students who attend Olympia illegally claiming an address in our zone but who actually live out of zone. West Orange is left with room for the growth they expect. Petitioner's Exhibit 14 (P-14). The Orange County Commission, in a decision entered on July 14, 1998, prohibited "portable" classrooms on the Olympia campus in the original design of the school. The decision, however, does not expressly prohibit "permanent" modular classroom structures. Sufficient property exists on the Olympia campus to accommodate permanent modular classroom structures. The procedural errors that occurred in adopting the challenged rule materially affected students in Citrus Oaks who are reassigned to West Orange. The challenged rule will interrupt feeder patterns at Gotha by reassigning some Gotha students to West Orange and allowing others to attend Olympia. The preceding findings concerning variations between the Staff Proposal and the challenged rule are made solely for examining the materiality of procedural errors. The findings do not examine the merits of the challenged rule or the wisdom of the decision of the School Board. Respondent maintains a stated agency policy that prohibits an individual member of the School Board from participating in any matter pending before the Board in which the member has a conflict of interest. In relevant part, the written policy provides: Board members are expected to avoid conflicts of interest involving any matter pending before the board. A conflict of interest is deemed to exist when the member is confronted with an issue in which the member has a personal . . . interest or . . . circumstance that could render the member unable to devote complete loyalty and singleness of purpose to the public interest. . . . The accountability to the whole district supersedes: * * * c. Conflicts based upon the personal interest of a board member who is a parent of a student in the district. P-6, at 001945. Mrs. Ardaman is a member of the School Board who is a parent of three students in the Olympia school zone. When District staff presented the Staff Proposal, one student was a senior at Olympia, another was a sophomore at Olympia, and the youngest was in the sixth grade at Gotha. Mrs. Ardaman did not have a conflict of interest concerning the Staff Proposal, option A, or option F. None of those proposals reassigned any of the Ardaman children from Olympia to West Orange. A deemed conflict of interest existed for Mrs. Ardaman during: the private workshops she conducted with District staff for the purpose of rule development; the public deliberations at the meeting conducted on December 6, 2004; and the vote of the School Board members that took place at the public hearing conducted on January 11, 2005. Courts have recognized that each concerned parent has an interest in his or her children, the educational program in which each is enrolled, the prevention of disruption in the educational progress of each child, and any unwarranted disruption in the child's educational experience.9 Mrs. Ardaman had a judicially recognized interest in developing and adopting a rule that minimized the foregoing impacts on her children. Citrus Oaks sits on the northern boundary of Old Winter Garden Road (Winter Garden). The Ardaman children reside in a neighborhood to the south of Winter Garden. Mrs. Ardaman chose to reassign Olympia students to West Orange from three neighborhoods north of Winter Garden, including students in Citrus Oaks, and to reassign Olympia students to West Orange from only one neighborhood south of Winter Garden. The challenged rule does not achieve the optimal goal sought by Mrs. Ardaman of reducing Olympia enrollment to the original design capacity. The challenged rule could have achieved that goal by increasing the number of reassignments to West Orange from the geographic area south of Winter Garden. Mrs. Ardaman declined that option. During the non-public workshops, Mrs. Ardaman asked District staff to analyze numerous school rezoning scenarios based on reassignments from specific neighborhoods. Although the various scenarios included neighborhoods south of Winter Garden, Mrs. Ardaman did not ask staff to analyze a scenario that would have reassigned students in her neighborhood from Olympia to West Orange. Reassignment of Olympia students in the neighborhood in which Mrs. Ardaman resides would have interrupted feeder patterns for Gotha students. At the time, Mrs. Ardaman had a child in the sixth grade at Gotha. The challenged rule interrupts feeder patterns at Gotha for students residing in neighborhoods north of Winter Garden. Respondent exercised agency discretion in adopting the challenged rule in a manner that was inconsistent with officially stated agency policy. Respondent permitted a member of the School Board with a personal interest deemed to be a conflict of interest to participate in a pending matter before the School Board. The deviation from agency policy was material. The members of the School Board voted on January 11, 2005, to adopt the proposed rule by a vote of four to three. Mrs. Ardaman cast the deciding vote. Without the vote of Mrs. Ardaman, the remaining tie vote would have been insufficient to adopt the proposed rule.10 The deviation from agency policy was material for other reasons previously stated in the discussion of procedural errors and not repeated here. Respondent did not explain the deviation from officially stated agency policy. The adoption of the challenged rule was neither arbitrary nor capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes (2004). The agency action is supported by logic and essential facts. Respondent did not adopt the proposed rule without thought or reason, and the proposed rule is not irrational. Between December 6, 2004, and January 11, 2005, the members of the School Board received data sheets and impact assessments for the proposed rule. The members had already received the data supporting the Staff Proposal. The members had adequate time between December 6, 2004, and January 11, 2005, to evaluate the logic, essential facts, and rationality of the proposed rule. The members of the School Board were faced with a controversial issue and a difficult decision. Reasonable individuals arguably may have decided to draw the school attendance zones differently. However, it is not appropriate for the trier of fact to substitute his judgment for that of the members of the School Board or to examine the wisdom of the decision of the School Board. Even though Respondent did not adopt the challenged rule in an arbitrary or capricious manner, the procedural errors and deviations from officially stated agency policy were material. Each impaired the fairness of the proceedings and prevented the agency action from being procedurally correct.
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes. The Board is charged by law with direction and control of all grades Kindergarten through 12 for all public schools in Broward County. The Board is required by statute to promulgate rules and regulations establishing attendance zones for schools under its control. During the latter part of 1981 and early 1982, the Board performed a review of attendance areas for the 1981-1982 school year in order to determine whether changes should be made for the 1982-1983 school year. In making these determinations, it is the Board's established policy to consider the following factors: overcrowded schools; improved utilization of present facilities; maintenance of a "unitary school system"; safety for students as pedestrians; feeder patterns; transportation costs; newly established schools; consolidation of small school attendance areas; and, community involvement. The dispute in this consolidated proceeding arises from the Board's rezoning decision for the 1982-1983 school year relating to four high schools, Pompano Beach High School; Ely High School; Plantation High School; and Dillard High School. On March 30, 1982, at a special meeting, the Board approved its superintendent's school boundary proposal, as reflected in the rule here being challenged. On April 12, 1982, an advertisement advising the general public of the proposal appeared in the local newspaper, in compliance with the requirements of Chapter 120, Florida Statutes. The effect of the proposed high school boundary changes, insofar as here pertinent, is to remove approximately 125 ninth grade students from Ely High School and to replace them with approximately 72 ninth grade students currently zoned to attend Pompano Beach High, among whom are various of the Petitioners in this proceeding; and further, to remove approximately 81 ninth grade students from Dillard High School and to replace them with approximately 100 ninth grade students currently zoned to attend Plantation High School, including certain other of the Petitioners in this proceeding. One of the Board's primary policy considerations in proposing the challenged rules for adoption is the maintenance of a "unitary school system." Among the policy tools utilized by the Board to maintain what it perceives to be a "unitary school system" is retention of the existing student racial balance at Dillard and Ely High Schools. During the 1981-1982 school year, the student population at Ely High School was 52 percent black, while blacks comprised approximately 72 percent of the student population at Dillard High School. Because of the tremendous increase in the predominantly white population of western Broward County, and the declining school age population of eastern Broward County, where both Dillard and Ely High Schools are located, the Board has a long-standing policy of busing white high school students from the west to maintain the desired racial composition at Dillard and Ely. This problem is not limited to high schools alone. System-wide, approximately 6,000 students are bused from non-contiguous areas in Broward County for purposes of racial integration. Unlike Petitioners in this case, however, approximately 80 percent of those students who are bused are black. If the proposed high school boundary changes are adopted, the Board has reasonably estimated that the student population at Dillard High School will remain approximately 72 percent black, while the percentage of black students at Ely High School will increase by approximately 2 percent. A further factor in the Board's proposed high school boundary change as it relates to the four high schools involved in this proceeding is the problem of under-enrollment. Ely High School has a realistic program capacity of 1,800 students. However, during the 1981-1982 school year there were only 1,519 students enrolled at Ely. Pompano Beach High School had a student population of 1,456 students for the 1981-1982 school year, despite a student capacity of 1,950. Dillard High School's 2,307 student capacity was utilized by 2,075 students during the 1981-1982 school year. 1,812 students attended Plantation High School in 1981-1982 in a school facility designed to accommodate 2,000 students. With or without the proposed boundary changes, all four of these schools will remain under capacity for the 1982-1983 school year. It appears that the primary reason for the rezoning proposal contained in the rules here under attack was the Board's decision to replace certain students attending Dillard and Ely High Schools with other students, including the Petitioners herein, who had previously been zoned to attend Plantation High School or Pompano Beach High School. Students who are being reassigned from Dillard High School and Ely High School to other area schools reside some distance further from Dillard and Ely than do the students being reassigned from Plantation and Pompano Beach High Schools. One result of the proposed zoning changes will, therefore, be a reduction in the distance which students will have to be bused, and a concomitant reduction in transportation costs. Once the decision had been made to curtail longer distance busing, the Board was faced with the dual problem of maintaining desired racial composition and preventing under enrollment at Dillard and Ely High Schools. The choice of reassigning the students from Pompano Beach and Plantation High Schools was a reasoned and logical decision reached after considering a multitude of alternatives suggested by consultants and a very lengthy process of public participation. The curtailment of unduly lengthy student busing, with its accompanying social and economic cost was a logical policy alternative which is clearly supported by facts of record in this proceeding. Petitioners Theodor Huber and Suzan Huber, his high school age daughter, currently reside within a school boundary designated for attendance at Pompano Beach High School for the 1981-1982 school year. If the proposed rule is adopted, they will be rezoned to attend Ely High School for the 1982-1983 school year. Petitioners Janyce Becker, for herself and on behalf of her minor child, Page Becker, and Karen Coates, for herself and on behalf of her minor child, Peter Coates, reside within present school boundaries for Plantation High School, but, if the proposed rule is adopted, they will be rezoned to attend Dillard High School for the 1982-1983 school year. Petitioner Plantation Residents' Association, Inc., is a Florida corporation, comprised of persons with children of school age who have attended and are attending public schools in Broward County, Florida. Members of this organization have children who will be rezoned from Plantation High School to Dillard High School for the 1982-1983 school year, should the proposed rule be adopted. There is no showing in the record of this proceeding that adoption of the proposed high school boundary attendance zones will have any economic impact on the Petitioners involved in this proceeding. Further, there has been no showing that the notice requirements of Chapter 120 54, Florida Statutes, have in any way been violated by the Board
The Issue The issue presented herein concerns the Respondent's through the person of his parents appeal of the School Board's assignment (of Respondent) to Youth Opportunity School South - an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated November 8, 1983, Petitioner, the School Board of Dade County, Florida, advised the Respondent, Carlos Alberto Giralt, an eighth grade student attending Glades Junior High School, that he was being administratively assigned to the opportunity school program based on his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Carlos Alberto Giralt, date of birth December 6, 1969, was assigned to Glades Junior High School as an eighth grader during the 1983-84 school year. During October of 1983, Carlos' brother was involved in a physical altercation with another student and Carlos came to his brother's aid by using a stick to physically strike the other student involved in the altercation. Initially, Carlos was given a ten-day suspension and thereafter the suspension was changed to the administrative assignment to the alternative school placement which is the subject of this appeal. 1/ Carlos' father, Salvador Giralt, was summoned to Glades Junior High School and advised of the incident involving Carlos and the other student in the physical altercation. Mr. Giralt was advised of the policy procedures in effect at Glades and was assured that Respondent would be given the least severe penalty, which was the ten-day suspension originally referred to herein. The Giralts are very concerned parents and have voiced the concern by complaining of Respondent's assignment to the Petitioner's area office. In keeping with this concern, the Giralts have requested that their son, Carlos, be reassigned to his original community school, Glades Junior High School. Respondent does not have a history of repeated defiant conduct as relates to School Board authority. According to Petitioner's Assistant Principal at Glades Junior High, Gerald R. Skinner, Respondent was last disciplined approximately two years ago. No showing was made herein that Carlos was either disruptive of the educational process or has failed to adjust to the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the School Board of Dade County enter a Final Order transferring the Respondent to Glades Junior High School or other appropriate regular school program. RECOMMENDED this 24th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1984.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2009.
The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2002.
