The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2002.
The Issue This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful neglect of duty; and in Count III with misconduct in office.
Findings Of Fact At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida. Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board. During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time. On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP"). At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP. On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP. On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS"). On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives. At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office. At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment. On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program. During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School. During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed. During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table. On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal. On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation. On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her. Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High. Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school. On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk. At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator. On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office. On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control." On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem. On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation. Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School. During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out. At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators. After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature. As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated. On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner. On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination. At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation. On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year. On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies. On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete. By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996. At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office. On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff. While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school. On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home. On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with the directives listed immediately above, within five (5) work days or face further disciplinary action. On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts. On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days. On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day. The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety. On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination. Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner. Respondent failed to attend the CFR scheduled for May 13, 1997. At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that: Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges; Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
The Issue Whether Respondent's educator's certificate should be subject to discipline for alleged attempts to persuade instructional staff members to change students' failing grades to higher passing grades without academic justification, for allegedly changing the grades of one or more students to higher grades without academic justification, and for allegedly "flagging" the grades of one or more students such that the grades would not count toward the students' grade point averages, in violation of Section 231.2615(1)(c), (f) and (h), Florida Statutes (2001), and Rule 6B-1.006(3)(a) and (d), (4)(b), and (5)(a) and (h), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Respondent, Suzanne Elliott, holds Florida Educator Certificate 558267, covering the areas of biology, physical education, and guidance counseling, which is valid through June 30, 2005. Ms. Elliott has a bachelor's degree in Physical Education, Recreation and Biology, and a master's degree in Guidance Counseling at the secondary level. Ms. Elliott was employed as a guidance counselor at Merritt Island High School ("Merritt Island") in the Brevard County School District (the "District") for the 1997-1998 and 1998-1999 school years. She had held this position since 1985. Ms. Elliott had also served for several years as the cheerleading coach at Merritt Island. Ms. Elliott was the crisis counselor for the entire Merritt Island student body, and was also heavily involved in special education and standardized testing. In fourteen years at Merritt Island, and eighteen years in the field of education, Ms. Elliott had no prior disciplinary actions brought against her license. Her employee evaluations uniformly ranged from "satisfactory" to "exemplary," with the exception of her evaluation dated October 26, 1998. This evaluation was "unsatisfactory," for reasons explained in the body of this Recommended Order. Relevant District policies To "establish suitable uniform procedures for marking and reporting progress of pupils," the District has adopted the Brevard County Secondary Schools Grading Procedures, which provide the following statement of purpose: Grades shall be a measure of a student's progress and achievement in mastering the subject matter, based on the quality of work done, and reflect a comprehensive evaluation which utilizes a number of marks. A student's regular attendance, daily preparation, and promptness in completing assignments should be consistent and congruent with these grades and taken into consideration in reporting a student's progress. During the period from 1997 to 2000, the Florida legislature required that a student have a 2.0 grade point average ("GPA") to compete or participate in sports, including cheerleading. Students who graduated in 1998-1999 were required to have a "minimum cumulative grade point average of 1.5 based on a 4.0 scale for the 24 credits required for graduation and a cumulative 2.0 unweighted GPA on all courses taken after July 1, 1997, which count toward graduation or a cumulative unweighted GPA of 2.0 on all courses taken." Students who graduated in 2000 and thereafter were required to have a minimum cumulative GPA of 2.0 based on a 4.0 scale for the 24 credits needed for graduation. Three of the District's Grading Procedures, and the proper interpretation thereof, provide the context for this case: the procedure regarding grade changes; the procedure regarding grade forgiveness, or "flagging" grades for courses that a student has repeated; and the procedure regarding "failure due to absences" or "FA" as a course grade. As to grade changes, the District's Grading Procedures provide: "Grades once recorded, other than an 'Incomplete,' will not be changed without approval of the principal. For justifiable academic reasons a principal may change a grade." Marjorie Ebersbach was the Area III Superintendent for Brevard County from 1997 to 1999. Area III included Merritt Island High School. As Area III Superintendent, Ms. Ebersbach was responsible for the operation of approximately 22 schools in the Brevard County area and reported directly to the Superintendent. Ms. Ebersbach confirmed that District procedure is that a student's grade may be changed for justifiable academic reasons with the permission of the principal. Merritt Island assistant principal Katherine Halbuer testified that a grade can be changed only by the teacher who assigned the grade or by the principal for justifiable academic reasons. Ms. Halbuer stated that under no circumstances does a guidance counselor have the authority to change a student’s grade. Cocoa Beach Junior/Senior High School ("Cocoa Beach") principal Leslie Patricia Vann, former Merritt Island principal William Dugan, Jefferson Middle School principal Gary Shiffrin, and Cocoa Beach teacher Mary Jane Binney, all testified that the District procedure for changing a student's grade is that the teacher who assigned the original grade may change it for a justifiable academic reason, with administrative approval. These witnesses agreed that a guidance counselor lacked the authority to change a student's grade. As to grade forgiveness for repeated courses, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA after the course is successfully repeated is referred to in the District as "flagging." A course flag can be added to a student’s transcript so that a certain course is excluded from the calculation of a student's grade point average. Guidance counselors do have the authority to flag a student's grades. At issue in this proceeding was the timing of the flagging. Each District employee who testified on behalf of the Department stated that after the student has retaken the course, received a higher grade, and had that grade posted to his official transcript by the district, the first course grade may be "flagged" so that the lower grade is excluded from the grade point average. These witnesses testified that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Ebersbach explained that while the student is retaking the course, he has "not earned a grade to replace the previous grade, and you’re excluding something from their academic record that you have no legal authority to exclude." Ms. Vann, Ms. Halbuer, and Mr. Dugan concurred with Ms. Ebersbach that the student must complete the second course and have the higher grade posted before the first grade could be flagged and excluded from the student's GPA. Barbara Jones, a guidance counselor at Cocoa Beach, who had interned under Ms. Elliott at Merritt Island, also testified that flagging a grade was appropriate only after the student had repeated the course and the second grade had been entered. Ms. Jones stated that she learned this procedure "on the job." Grade changes and flags were posted via computer data entry. For many years prior to February 1998, the District employed an IBM mainframe computer running programs written by District staff. This system was popularly known as "IRMA." In February 1998, the IBM mainframe was replaced by an IBM AS400 server, and the homegrown programs were replaced by a commercially developed software program called "Total Educational Resource Management System," or "TERMS." As to "failure due to absences," the District's Grading Procedures provide: When a student is to receive a failing grade due to excessive absences, the following guidelines will apply: Students who have earned an average of 70 or higher [i.e., a passing grade] will receive 69 [the highest failing grade] for the grading period. Students who have earned an average between 49 and 69 will receive the grade they have earned.... The District did not set a system-wide number of unexcused absences that would merit a course grade of "failure due to attendance" or "FA." Individual schools were allowed to establish their own standards. At Cocoa Beach, an FA would be given when a student had more than nine days of unexcused absences in a given course. A student who received an FA could appeal the grade by timely filing an appeal form and going before a faculty appeal committee, which could change the FA to the grade the student would have received but for the excessive absences. However, a student whose absences were due to truancy or skipping class would not be permitted to appeal the FA grade. The Allegations In August 1998, Ms. Vann, the principal of Cocoa Beach, was approached by one of her teachers, who asked her why a guidance counselor from Merritt Island would make inquiries as to the grades of a Cocoa Beach student. Ms. Vann thought this highly irregular, believing that a counselor from another school should first contact the principal of the school with any such inquiries. Upon investigation, Ms. Vann learned that the counselor in question was Ms. Elliott, and that she had contacted three Cocoa Beach teachers regarding S.H., a Cocoa Beach student and cheerleader, who was in the process of transferring to Merritt Island. At a principals' meeting on August 26, 1998, Ms. Vann raised the issue with Mr. Dugan, the principal of Merritt Island. Mr. Dugan told Ms. Vann that if she had allegations to make against Ms. Elliott, she should put them in writing and he would consider them. At about the same time as Ms. Vann began expressing concerns about Ms. Elliott, Merritt Island assistant principal Catherine Halbuer began her own investigation of Ms. Elliott. Heather Novitsky, a newly hired data entry clerk, came to Ms. Halbuer with a handwritten list of students and courses that Ms. Elliott had given her with instructions to flag the courses. Ms. Novitsky did not know what "flagging" meant. When Ms. Halbuer instructed Ms. Novitsky on the procedure for flagging a student's grade, she discovered that the students on the list had not repeated the classes that Ms. Elliott had marked for flagging. Ms. Halbuer met with Ms. Elliott in August 19982 to explain that a flag could not be entered until a student had repeated the class and the grade had been posted. At a subsequent meeting on August 26, 1998, Mr. Dugan and Ms. Halbuer again discussed the proper procedure for flagging student courses with Ms. Elliott. At this meeting, Mr. Dugan told Ms. Elliott that a course could not be flagged before the second class had been completed and the grade posted. Ms. Elliott indicated that she understood. Meanwhile, Ms. Vann was conducting an independent investigation of Ms. Elliott's involvement with student S.H. Ms. Vann personally reviewed S.H.'s academic history and discovered that someone outside of Cocoa Beach had made three grade changes to S.H.'s record without authorization from any teacher at Cocoa Beach. Ms. Vann also discovered that someone outside of Cocoa Beach had flagged six courses for S.H., none of which S.H. had retaken at the time of flagging. On September 11, 1998, Ms. Vann sent a package to Principal Dugan documenting her investigation into the grade changes and flags that had been made to S.H.'s records. Ms. Vann's cover letter to Mr. Dugan requested that S.H.'s transcript be corrected to reflect the grades that were issued by her teachers at Cocoa Beach. In response to Ms. Vann's memorandum and accompanying materials, Mr. Dugan commenced his own investigation into the allegations. He personally reviewed the student records compiled by Ms. Vann, and concluded from the user password on the computer printouts that Ms. Elliott was the person who flagged and changed the grades for S.H. Mr. Dugan also discovered that Ms. Elliott had flagged an "F" grade in Algebra I for Student M.P., despite the fact that M.P. had not retaken the course. Mr. Dugan decided that these findings merited a thorough review of Ms. Elliott's flagging practices. Mr. Dugan contacted the District's main office, which assigned its systems analyst, Andrea Young, to compile information for Mr. Dugan's review. Ms. Young spent approximately three months compiling computer records regarding Ms. Elliott's case. On September 15, 1998, Mr. Dugan orally informed Ms. Elliott of the allegations against her and gave her 24 hours to respond. Mr. Dugan also told Ms. Elliott that she was prohibited from accessing TERMS until the allegations against her were resolved. Ms. Elliott did not respond to the substance of the allegations by September 16, 1998. However, on that date Ms. Elliott requested that Mr. Dugan put the allegations in writing so that she could obtain the assistance of her union representative. On September 17, 1998, Mr. Dugan addressed a memorandum to Ms. Elliott that set forth the following allegations: Mrs. Elliott approached three teachers at Cocoa Beach High School requesting a grade change for student [S.H.]. Mrs. Elliott did flag six grades for [S.H.] so they would not count on her gpa at approximately 6:00 p.m. on 8/27/98 and 8/28/98. Mrs. Elliott did change three grades for [S.H.] on 8/27/98 and 8/28/98. Mrs. Elliott did flag one grade for [student M.P.] so it did not count on her gpa on 8/27/98. I am requesting that you provide me with a written response to these allegations by 9:00 a.m. Monday, September 21, 1998. Also on September 17, 1998, prior to receiving any substantive response from Ms. Elliott, Mr. Dugan wrote a memorandum to Leroy Berry, the District's assistant superintendent for human resources. The memorandum stated that Mr. Dugan had completed his investigation and concluded that Ms. Elliott had in fact committed the acts described as "allegations" in his memorandum to her. Mr. Dugan further wrote that Ms. Elliott's failure to respond to the substance of his allegations within the 24-hour deadline he had given her on September 15, along with the documentation he received from Ms. Vann, led him to conclude that Ms. Elliott had changed and flagged the grades of S.H. and M.P. with the intent of making them eligible for the cheerleading squad. On September 21, 1998, Ms. Elliott gave Mr. Dugan her written response to each of the allegations: I had telephone conversations with three teachers from Cocoa Beach High School (CBHS) and explained that we had put [S.H.] on a contract—- a procedure that we use at Merritt Island High School (MIHS) for students with Failed/Attendances (FAs). I asked them if they would be willing to change the grades pending administrative approval if she followed through with the contract; she attended every day of summer school at CBHS and passed the classes. Two of the teachers said she was a good student, and they would be willing to help her. One teacher said there were no appeals processes or contracts at CBHS. I flagged courses she repeated in summer school, courses that were FAs, and courses in which she was presently enrolled. After practice on 27 and 28 August, at approximately 6 pm, [S.H.] came down to my office for counseling regarding her grades. I explained to her the effort she needed to apply to her studies, using the computer to demonstrate by making changes to letter grades. I never intended the grades to be changed permanently, evidenced by the fact that I never changed the Quality Points. Both changes are required for permanent grade changes. I did not know enough about the TERMS Program to realize that those changes I did make in demonstration to [S.H.] would be automatically saved when I exited the program. [M.P.] made up both of the courses in question in summer school and achieved the necessary grade to be eligible [for cheerleading]. On September 22, 1998, Mr. Dugan addressed to Mr. Berry a detailed memorandum in response to Ms. Elliott's memorandum of September 21. In his memorandum, Mr. Dugan stated that the contract procedure described by Ms. Elliott had never been used at Merritt Island, though he conceded that the principal might enter a contract to change the grade of a student "when faced with parental pressure on a questionable situation or to motivate a student in attendance trouble during that semester...." Mr. Dugan also noted that, according to Ms. Vann, no teacher at Cocoa Beach gave approval for a grade change. Mr. Dugan wrote that S.H. repeated only one class in summer school, that it was a class S.H. had already passed with a "B," that her grade for the course for summer school was also a "B," and that Ms. Elliott had improperly counted both "Bs" in the same course toward S.H.'s eligibility to participate in cheerleading. Mr. Dugan wrote that Ms. Elliott's flagging of S.H.'s grades of FA were both unauthorized and untimely, as was the flagging of M.P.'s grade for Algebra I. Finally, Mr. Dugan questioned Ms. Elliott's claim of ignorance as to entering grades on the TERMS system: "[A]ll counselors know anytime you change a grade on TERMS and hit enter, the screen automatically tells you the information has been taken and the record has been updated." On October 8, 1998, Mr. Dugan outlined a new allegation in a memorandum to Mr. Berry. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to access the TERMS system, in contravention of Mr. Dugan's order of September 15, 1998. At some point in early October 1998, the District suspended Ms. Elliott with pay, pending the results of the investigation. On October 26, 1998, Ms. Elliott received an official letter of reprimand stating as follows, in relevant part: This is an official letter of reprimand for your violations of School Board Policies 6Gx5-4.04 Access to Student Records, and 6Gx5-7.01(8) Compliance with Policies Required, the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.006, [Florida Administrative Code] (3)(d); (4)(a)(b)[sic]; and (5)(a) and two instances of gross insubordination to administrative directions. Not only did you request a teacher at Cocoa Beach Junior/Senior High School to change students' failing grades, you blatantly ignored my specific instructions on two occasions and changed failing grades and/or course flags of two students thereby raising their expectations to become eligible for participating on the Merritt Island High School cheerleading squad. Your access to TERMS was removed yet you deliberately went into the program utilizing another colleague's password. This letter serves to officially notify you that you no longer will be able to have access to TERMS. As of today, October 26, 1998, your suspension with pay has been rescinded by the Superintendent and you are being reassigned to the Abeyance Center, Cogswell site, effective tomorrow, Tuesday, October 27, 1998. You are to report to Kim Armellini, assistant principal, at 8:00 A.M. As you are removing your personal items on October 26, 1998, there remains no further reason for your continued presence on the Merritt Island High School campus. In early 1999, the District decided to terminate Ms. Elliott's employment. Ms. Elliott challenged that decision in DOAH Case No. 99-0207. The case was settled in November 1999, prior to hearing. Ms. Elliott voluntarily resigned her position with the District as part of the settlement. The investigation into Ms. Elliott's grade changes and flags continued even after she was removed from the Merritt Island campus and ultimately left the employ of the District. As noted above, Ms. Young's compilation of computer records relating to flags entered by Ms. Elliott continued through approximately December 1998. In October 1998, Marjorie Ebersbach took over as area superintendent and asked Mr. Dugan to bring her up to speed on any matters of concern at Merritt Island. Mr. Dugan briefed her on the Elliott investigation, and Ms. Ebersbach began her own investigation of the matter. During her personal investigation, Ms. Ebersbach met with Principal Dugan, Ms. Young, and Assistant Principal Halbuer. She also reviewed student records and concluded that Ms. Elliott had improperly flagged and changed student records. Mr. Dugan also continued his personal review of student records allegedly altered by Ms. Elliott, and finally concluded that "the evidence on file indicates Ms. Elliott continually violated . . . accepted ethical practices and she [should] be terminated." Ms. Halbuer, the assistant principal, also continued her investigation. She pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. A number of these students with altered records had already graduated. Memoranda by Ms. Halbuer outlining fresh allegations against Ms. Elliott appeared as late as February 15, 1999. Based on her personal review of the student records, Ms. Halbuer concluded that Ms. Elliott "flagged on a wide scale throughout all of her senior students, and also that some students had actual classes, based on their transcripts, that they never took, and that some students received diplomas that probably should not have received diplomas." The Evidence This section deals with the charges against Ms. Elliott for which the Department was able to produce evidence sufficient to establish a prima facie case of wrongdoing by Ms. Elliott. As will be discussed below, the passage of time and the routine destruction of records meant that the Department was unable to make a prima facie case regarding several students as to whom Ms. Halbuer's accusatory memoranda were unsupported by the documents on which she relied. Student S.H. Student S.H., an African-American female, attended ninth grade at Cocoa Beach in the 1997-98 school year. S.H. was a talented cheerleader but, by her own and her mother's testimony, she was going through a rebellious period. She fell in with the "wrong crowd" and began a pattern of skipping classes with her friends. Because of her truancy, S.H. received grades of FA in four of her ninth grade classes, including classes taught by Michael Gaudy, Michael Drake, and Mary Jane Binney. Cocoa Beach allowed students who had received a grade of FA to appeal that grade, but maintained a strict prohibition against appeals by students whose FA grades were due to skipping school. Ms. Vann, the Cocoa Beach principal, had evidence in her records that S.H. had skipped school, including records from teachers, phone calls to her parents, and referrals of S.H. to the dean’s office for truancy. Ms. Vann documented at least fourteen dates on which a teacher or administrator from Cocoa Beach contacted or attempted to contact S.H.'s parents regarding truancy, absences, grades, and leaving class. At the end of her ninth grade year at Cocoa Beach, S.H. had a GPA of 1.333, well below the 2.0 GPA required for participation in cheerleading. S.H. cheered on an independent, competitive "all star" team which included several members of the Merritt Island cheerleading squad. With the encouragement of some Merritt Island cheerleaders, S.H. approached Ms. Elliott in April 1998 about coming to Merritt Island and cheering for its team. Merritt Island was the school for which S.H. was actually zoned. She had attended Cocoa Beach because her older brother went there, but he graduated in Spring 1998. S.H. and her mother, M.H., wanted S.H. to transfer to Merritt Island. M.H. believed that Merritt Island would provide S.H. with a fresh start to her high school career away from the people with whom she'd been in trouble at Cocoa Beach. M.H. also believed that the larger African-American student population at Merritt Island would be positive for S.H. socially and academically. S.H. learned of the FA appeal process from one of the friends who had skipped school with her. This friend said that she had successfully appealed her FAs through Ms. Vann. However, when S.H. went to the Cocoa Beach office and attempted to file an appeal, her efforts were rejected as untimely. Because S.H.'s friend was white, S.H. and her mother suspected there was some racial motive in the rejection of her appeal. The evidence presented at hearing did not demonstrate that S.H.'s appeal was denied for any reason other than it was untimely. Ms. Elliott's initial reaction to hearing S.H.'s allegation of racial discrimination was to tell S.H. that there was nothing she could do. She advised S.H. to handle the problem herself, with her mother's assistance. However, M.H. subsequently told Ms. Elliott that she could not deal with the personnel at Cocoa Beach. Ms. Elliott offered to help collect information that the parent could present to the administration at Cocoa Beach to appeal the FA's. Ms. Elliott believed that Mr. Dugan might help and even intercede directly with the administration at Cocoa Beach, because Merritt Island was more lenient about granting FA appeals and because Mr. Dugan had helped her before with similar problems. Ms. Elliott was aware of several successful FA appeals at Merritt Island involving students who had more absences than S.H. Ms. Elliott also testified that Mr. Dugan had always been supportive of the cheerleading squad. Ms. Elliott advised S.H. that she would have to show "massive improvement" in her school work and spent time with S.H. to work on improving her grades. Ms. Elliott reviewed S.H.'s complete cumulative academic folder, counseled her on the racial issues she had raised, advised her on appealing the FAs, encouraged her to go to summer school, spent time with her after-hours, and placed her on the aforementioned "contract." The contract, signed on May 4, 1998, by Ms. Elliott, S.H., and M.H., stated: I, [S.H.], will attend summer school everyday [sic] during summer I and II to repeat courses I failed during my ninth grade year at Cocoa Beach High School in an effort to show my true capabilities and academic potential. In my efforts I realize that I can "audit" (x) or have my FA's changed from semester I at Cocoa Beach High School with the cooperation of my teachers from Cocoa Beach High School and/or administration from Merritt Island High School. I also realize that if I earn a D or an F during any term, as a Varsity Cheerleader at Merritt Island High School I will be on academic probation and will be required to work with a tutor one day a week. At the hearing, Mr. Dugan testified that one of his chief objections to the contract with S.H. was that Ms. Elliott did not obtain his approval. He stated that only the principal or his designee could enter into such a contract with a student. Mr. Dugan further stated: But in all of these cases, the contract would have to have the student right the wrong, whatever it was that they had done, okay? For example, you may give a student who's... passed mathematics with a C but failed it through excessive [absences]. You might write a contract with that student that if you don't miss any more than three days the next semester I would remove the FA because you've shown the fact that you can attend and will attend on time. Mr. Dugan found Ms. Elliott's contract with S.H. "totally illegal" because at the time the contract was executed, S.H. was not a student at Merritt Island. Further, Ms. Elliott was holding out the possibility of changing S.H.'s Cocoa Beach FAs with no real way of knowing whether it could be done. Ms. Elliott advised S.H. that she was ineligible for cheerleading upon her transfer in August 1998, and could not cheer until she became academically eligible. S.H. took two classes every day over her summer break. She received an "A" in one class, and a "B" in the other, with no absences. Ms. Elliott testified that in August 1998 she phoned three of S.H.'s teachers at Cocoa Beach, not to ask them to change S.H.'s FA grades in their classes, but to obtain information about S.H’s performance in their classes and to inform them of the assistance she was giving S.H. Ms. Elliott testified that one reason she called the teachers was to verify what S.H. was saying about her performance at Cocoa Beach. Ms. Elliott asked the teachers how often and why S.H. was absent from their classes, what grades S.H. would have earned but for the excessive absences, and whether she had brought an appeal of the FAs to any of them. Ms. Elliott conceded that her September 21, 1998, written response to Mr. Dugan's allegations included the statement: "I asked them if they would be willing to change the grades pending administrative approval if [S.H.] followed through with the contract." Ms. Elliott testified that this was in the nature of a shorthand response to Mr. Dugan's inquiry, and reiterated that she never directly asked the Cocoa Beach teachers to change S.H.'s grades. Ms. Elliott testified that she would have crafted her written response with more care had she understood the gravity of her situation. All three of the Cocoa Beach teachers contacted by Ms. Elliott testified at hearing. Each teacher verified that he or she was telephoned by Ms. Elliott, and that Ms. Elliott did not ask him or her to change the FA grade given to S.H. None of the three teachers recalled S.H.'s requesting an appeal of her FAs. Mike Drake taught ninth grade World Geography to S.H. during the 1997-98 school year and gave her an FA for more than nine unexcused absences. He stated that S.H. would likely have made a high "B" in his class but for the absences. Mr. Drake recalled that another teacher had circulated an e-mail throughout Cocoa Beach regarding the fact that S.H. had skipped school and that S.H.'s mother had been contacted concerning the absences. Mr. Drake confirmed that Ms. Elliott did not ask him to change S.H.'s grade. He stated that his interpretation of Ms. Elliott's purpose in calling was "gathering information." Mary Jane Binney, who taught Life Management to S.H. during the 1997-98 school year, testified that S.H. would have made a "C" in her class but for the absences. Ms. Binney testified that Ms. Elliott told her that she was helping S.H., and that Ms. Elliott "absolutely" did not ask her to change S.H.'s grade. Mike Gaudy, the athletic director at Cocoa Beach, had taught Weight Training to S.H., though he had no recollection of S.H. or of the grade she would have received but for her excessive absences. Mr. Gaudy thought it was "peculiar" that Ms. Elliott would contact him about a student who no longer attended Cocoa Beach. He was the teacher who reported his conversation with Ms. Elliott to his principal, Ms. Vann, who had him write a statement concerning his conversation with Ms. Elliott. Mr. Gaudy's written statement strongly implied that Ms. Elliott's purpose in calling was to persuade him to change S.H.'s grade. At the hearing, Mr. Gaudy testified that Ms. Elliott in fact never asked him to change a grade. The subject of grade changes came up only because Mr. Gaudy asked Ms. Elliott if that was her purpose in calling. In summary, no evidence was presented that Ms. Elliott at any time "improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification." Ms. Elliott was attempting to work out some form of grade forgiveness for S.H., contingent upon her improved performance in summer school and beyond, but there is no indication that she did anything "improper" aside from failing to involve Mr. Dugan in her efforts. At worst, Ms. Elliott failed to understand that Cocoa Beach's policy concerning FAs was more unyielding than the policy at Merritt Island, and that suspicions would therefore be aroused at Cocoa Beach when she began making inquiries about S.H.'s grades. The next phase of the narrative requires a digression on the working of TERMS. As noted above, TERMS was introduced to the District in Spring 1998. Training of District personnel on the use of TERMS began in February 1998. Ms. Elliott attended the first introductory course in February, and there learned that the entire District would immediately begin using TERMS for student scheduling. The training was to include a preview of the different "screens" on TERMS, including the scheduling screen and the attendance screen. Each type of screen required separate training. More than one hundred trainees attended the course with Ms. Elliott. They were provided no hands-on training; rather, they viewed a simulation of the TERMS program on an overhead projector and heard descriptions of the program's capabilities. One working TERMS terminal was set up to demonstrate its functionality, but the program constantly malfunctioned. Ms. Elliott testified that District personnel were skeptical about TERMS because they had heard about severe problems experienced in another large county, where the program was unable even to print transcripts. She testified that the malfunctions of the program at this introductory course intensified the general apprehension about TERMS. Ms. Elliott was not the only witness to discuss the problems with TERMS. Mr. Dugan testified that "there was an awful lot of frustration not only with my staff but with myself and all the other principals. Getting on the new system was a frustrating experience for all of us." Ms. Vann found the TERMS program "a lot more complex" than IRMA, "difficult" enough that she created her own training handbook that was ultimately circulated to all principals in the District. Mr. Dugan testified that TERMS was a "difficult program," and that it was "probably unfair" to expect the guidance counselors to use it for scheduling without adequate training. Ms. Elliott never received hands-on training on the scheduling screen. She learned on the job by scheduling students into their classes with the help of a "cheat sheet" prepared by a fellow guidance counselor who attended a later TERMS training session. She scheduled students for their Fall 1998 semester classes, asking for help when she made a mistake. Ms. Elliott received no training on the "academic history" screen, which was the screen used to enter grade changes or flags on a student's record. Ms. Elliott repeatedly requested hands-on training, but never received it. She tried to learn the program by watching what the other counselors did. Ms. Elliott testified that she had learned through "gossip of the counselors" that the TERMS program could be used as a counseling tool. She was told that it had the capability to allow a counselor to sit with a student and run hypothetical, "what if" scenarios regarding how the student's GPA could be improved or lowered depending on the grade received in a particular class or classes. Ms. Elliott was excited by this possibility, because the only way a counselor currently had to play such "what if" games was pencil and paper calculation, which was time consuming and subject to error. She believed that seeing the possible GPA improvement pop up immediately on a computer screen would be more likely to inspire the student to earn those grades, and she looked forward to using this tool with her counseling students. In fact, the TERMS program has no such "what if" capability, though systems analyst Andrea Young testified that it would be possible to write a program to give TERMS that capability. Ms. Young also testified that TERMS automatically saved any grade changes entered, without giving the user any opportunity, in the form of a "save" warning or otherwise, to rescind a grade entry. On the evening of August 27, 1998, after cheerleading practice, Ms. Elliott sat down in her office with S.H. to review her summer school grades on the "academic history" screen of the TERMS program. At this point, Ms. Elliott had seldom if ever attempted to manipulate data on the academic history screen. She had never changed letter grades, though she had entered flags for repeated courses. Ms. Elliott attempted to show S.H. what her GPA would be after her summer school grades were posted, and what it would be if S.H. were able to obtain the letter grades she would have received in the three classes at Cocoa Beach but for her excessive absences. Ms. Elliott entered the grades, but noticed that the grade changes resulted in no change in S.H.'s quality points or overall GPA on the TERMS screen. Ms. Elliott was perplexed. She knew from experience that flagging the grades would change the GPA, so she entered flags next to each grade. Flagging the grades did change the GPA, and enabled her to counsel S.H. Ms. Elliott testified that her only intention was to motivate S.H., to show her what would happen if she could successfully appeal the FAs from Cocoa Beach. She told S.H. that she would not likely raise her GPA sufficiently to be eligible for cheerleading in her first semester at Merritt Island, but that it would be possible to attain eligibility in her second semester. S.H. testified at the hearing, and completely corroborated Ms. Elliott's version of events. She confirmed that Ms. Elliott told her she was not eligible to cheer for Merritt Island. S.H. testified that her main concern at the time was to get away from Cocoa Beach, not to cheer for Merritt Island. She was already cheering for an elite competitive team away from school. S.H. testified that she began to cheer for Merritt Island during the second semester of her tenth grade year. Ms. Elliott testified that when she used the old IRMA system, the screen would clear upon signing off. IRMA required an affirmative keystroke to make grade changes permanent. Ms. Elliott did not realize until the evening of August 27, 1998, that TERMS made the changes automatically. Ms. Elliott returned to S.H.'s record in the TERMS program the next evening, August 28, 1998. Ms. Elliott testified that she was determined to figure out how to make grade changes on the TERMS program, and how to correct the erroneous grade changes and flags she had entered the previous evening. She had no better luck on the second night. Ms. Elliott testified that she never intended to make permanent changes in S.H.'s records. She expected to change the grades back to their correct status when she received S.H.'s cumulative folder from Cocoa Beach. She never made the corrections because the investigation commenced and she was barred from using TERMS before she had an opportunity to do so. The only evidence that Ms. Elliott altered S.H.'s records in order to make her eligible for cheerleading came from Mr. Dugan, who testified that S.H. cheered for Merritt Island at a Spring 1998 football jamboree before she was even a student at Merritt Island. Mr. Dugan also testified that he had "personal knowledge" that S.H. cheered for Merritt Island at the first three football games in Fall 1998, though he did not elaborate on the nature of this personal knowledge.3 He testified that he would have believed Ms. Elliott's story about playing "what if" games on the TERMS program, had she not placed S.H. on the cheerleading squad. Ms. Elliott, S.H., and M.H. testified that they all understood S.H. was not eligible to cheer during the Fall semester of 1998. S.H. testified that she was allowed to practice with the team, and was allowed to wear the uniform to games but was not allowed to cheer with the team. The last point accounts for the contradiction between Mr. Dugan's testimony and that of Ms. Elliott and S.H. Mr. Dugan testified that a cheerleader who did not have a 2.0 GPA could work out and practice with the team, but was not permitted to wear the uniform or cheer at school activities. Ms. Halbuer, the assistant principal at Merritt Island and a former junior varsity cheerleading coach, confirmed Mr. Dugan's statement that an ineligible cheerleader cannot wear the uniform. According to her own testimony, S.H. was allowed to wear the cheerleader uniform to games before she was eligible. The weight of the testimony establishes that Ms. Elliott should not have allowed S.H. to wear the uniform. However, despite Mr. Dugan's testimony, the evidence is persuasive that Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of 1998, and that S.H. did not actually cheer with the team at any games prior to becoming eligible in the Spring semester of 1999. Ms. Elliott's testimony as to how S.H.'s grades came to be changed and flagged is persuasive and credited. Ms. Elliott was negligent in failing to take steps immediately to correct S.H.'s grades. Rather than waiting for S.H.'s cumulative file to come over from Cocoa Beach, Ms. Elliott should have approached her superiors at the first opportunity to explain what happened and obtain assistance in correcting the record. However, the evidence presented at the hearing did not demonstrate that Ms. Elliott intentionally altered S.H.'s grades to make her eligible to cheer for Merritt Island. Ms. Elliott, S.H., and M.H. all understood that S.H. was not eligible to cheer for Merritt Island during the Fall semester of the 1998-99 school year. Student M.P. Student M.P., a white female, attended ninth grade at Jefferson Junior High School ("Jefferson") in the 1997-98 school year. She transferred to Merritt Island to begin tenth grade in Fall 1998. M.P. was a cheerleader, and attended summer cheerleading camp with Ms. Elliott during the summer of 1998. In the ninth grade at Jefferson, M.P. took Algebra I during her first semester and received an "F." She was placed in Applied Math I for the second semester of ninth grade and received a "D." Two semesters of Applied Math I are considered the equivalent of one semester of Algebra I. At the end of ninth grade, M.P. was advised by her counselor at Jefferson that she should repeat Algebra I during the 1998 summer session. She applied to take Algebra I, but was told that it was not available. Therefore, she signed up for two semesters of Applied Math I. M.P. earned a "C" for the first semester and an "A" for the second semester of Applied Math I during summer school. On August 27, 1998, Ms. Elliott entered flags for M.P.'s ninth grade "F" in Algebra I and "D" in Applied Math I, meaning her grades in those courses would not count toward M.P.'s GPA. Ms. Elliott's logic was that, because Applied Math I is considered an equivalent course to Algebra I, M.P.'s two semesters of Applied Math I in summer school could replace her two semesters of Algebra I and Applied Math I in the ninth grade. The two flags entered by Ms. Elliott made M.P. eligible to cheer during the 1998 fall semester at Merritt Island. Believing M.P. to be eligible, Ms. Elliott permitted M.P. to cheer at three Merritt Island football games in August and September 1998. During his September 1998 investigation of Ms. Elliott, Mr. Dugan discovered the flag for Algebra I on M.P.'s records. Noting that M.P. had never retaken Algebra I, and declaring that a flag was appropriate only where a student has retaken the identical course, Mr. Dugan ordered the flag removed. With the "F" in Algebra I returned to the calculation, M.P.'s GPA fell below 2.0. Mr. Dugan ordered M.P. removed from the cheerleading team in late September 1998. He had a meeting with M.P.'s parents at which he told them that "something was going on," that grades had been changed that should not have been changed, and that M.P. was no longer eligible to cheer for Merritt Island. M.P.'s parents approached Ms. Elliott to find out what happened. Ms. Elliott did not believe that Mr. Dugan's insistence that only identical courses were eligible for flagging was consistent with Florida Department of Education policy. She telephoned Sharon Koon, her contact at the Department of Education, who verified that Algebra and Applied Math are viewed as equivalent and that the "F" in Algebra I could be flagged because M.P. took two semesters of Applied Math I during summer school. On October 8, 1998, M.P.'s parents returned to Mr. Dugan to inform him of Ms. Elliott's findings. Mr. Dugan was upset that Ms. Elliott had discussed the matter with M.P.'s parents before talking to him about the matter. He nonetheless consulted Daniel Scheuerer, the District's assistant superintendent for academics, who informed him that the two semesters of Applied Math I could indeed substitute for Algebra I. Therefore, Ms. Elliott's flag of M.P.'s "F" grade in Algebra I had been correct. However, Mr. Scheuerer also noted that if both semesters of Applied Math I were used to forgive M.P.'s grade in Algebra I, then there was nothing that could be used to forgive M.P.'s "D" grade in Applied Math I for the second semester of ninth grade. Thus, Ms. Elliott's flag of the "D" grade for Applied Math I would have to be removed even as the flag for M.P.'s "F" in Algebra I was reinstated. The end result was that M.P. remained ineligible for cheerleading. The evidence regarding M.P. establishes no more than a good faith misunderstanding regarding equivalent courses by Ms. Elliott. It was apparent that Mr. Dugan himself misunderstood the application of equivalencies prior to consulting Mr. Scheuerer. There was insufficient evidence that Ms. Elliott intentionally entered improper flags for M.P. in order to make her eligible for the cheerleading squad. Improper Use of Password As noted above, Mr. Dugan's October 8, 1998, memorandum to Mr. Berry outlined a new allegation against Ms. Elliott. Mr. Dugan stated that on September 30, 1998, Ms. Elliott had obtained the TERMS password of another guidance counselor, Kathleen Peters, and had used Ms. Peters' password to gain access to the TERMS system, in contravention of Mr. Dugan's order that Ms. Elliott was not to use TERMS while she was under investigation. It must be noted that the allegation of improper use of Ms. Peters' password was not among the factual allegations set forth in the Administrative Complaint. No objection was lodged by counsel for Ms. Elliott on this basis. Ms. Elliott was aware of this allegation and fully joined the issue at the final hearing. It is found that the pleadings of the Administrative Complaint were effectively amended to conform to the evidence. Kathleen Peters was the director of guidance at Merritt Island. She was Ms. Elliott's direct superior. On September 30, 1998, Ms. Peters called in sick with a migraine headache. She was in the midst of rearranging the schedules for Spanish classes, and had a list of changes that had to be entered on the computer that day. She phoned the guidance office and reached Ms. Elliott, who was the only guidance counselor present at Merritt Island on that day. Ms. Peters explained the situation to Ms. Elliott, and asked her to make the schedule changes and corrections. Ms. Elliott told Ms. Peters that she could not use her own code to access the TERMS program. Ms. Elliott did not tell Ms. Peters that Mr. Dugan had prohibited her from using TERMS. At the hearing, Ms. Elliott indicated that her reticence was largely due to embarrassment over the investigation of her computer use. She was unsure whether her colleagues in the guidance office knew about the investigation, and was unsure herself of the investigation's scope and how much information she should share with Ms. Peters. Ms. Elliott asked Ms. Peters for her code to the TERMS system. Ms. Peters saw nothing unusual in this request, because it was not uncommon for TERMS to deny access to some users for apparently arbitrary reasons. Ms. Peters testified that she had been denied access on occasion. Ms. Peters gave her code to Ms. Elliott. Ms. Elliott attempted to access TERMS on her own computer, using Ms. Peters' code. She was denied access. She thought that the code might work if entered on Ms. Peters' computer. However, given the allegations that had already been made against her, Ms. Elliott thought she ought not be seen going into Ms. Peters' office and trying to use Ms. Peters' computer. She decided simply to tell Ms. Peters that she had tried but could not access TERMS. Ms. Elliott testified that she did not make changes to any records using Ms. Peters access code. Her testimony on this point was confirmed by Mr. Dugan, who admitted at the hearing that a subsequent investigation revealed no records that had been accessed by Ms. Elliott by way of Ms. Peters' security code. On October 5, 1998, during a scheduling discussion, Ms. Peters learned from Ms. Halbuer that Ms. Elliott was prohibited from using the computer. Ms. Peters then reported to Ms. Halbuer that Ms. Elliott had obtained her access code on September 30. Ms. Halbuer relayed this information to Mr. Dugan, who added this incident to the list of allegations related to Ms. Elliott in his memorandum of October 9, 1998: On September 15, 1998, I informed you that you were not permitted to use TERMS until the investigation reference [sic] the allegations against you were resolved. On Wednesday September 30, 1998, Mrs. Elliott did request and receive Mrs. Peters security code and did access TERMS without requesting authorization or receiving authorization. This allegation was sustained by the evidence at least insofar as Ms. Elliott obtained Ms. Peters' code and attempted to access TERMS. Ms. Elliott's culpability is mitigated by the exigency of the situation and by the fact that she did not actually make use of Ms. Peters' security code. Nonetheless, Ms. Elliott well understood that she was prohibited from accessing TERMS. There were numerous options available to her that did not involve direct insubordination to Mr. Dugan's directive. She could have obtained the assistance of the data entry clerk. She could have approached Mr. Dugan or Ms. Halbuer with her dilemma. She could have simply leveled with Ms. Peters as to why she was unable to use her own security code. However wronged she felt by the ongoing investigation, Ms. Elliott had no authority to disregard Mr. Dugan's order. Flagging in general As noted above, the investigation of Ms. Elliott continued even after the District removed her from Merritt Island and terminated her employment. In particular, Ms. Halbuer, the assistant principal, pulled student records and compared them to transcripts in the students' cumulative files, to determine whether the errors were merely computer errors. Ms. Halbuer found approximately fifty-six student records that she concluded had been improperly altered by Ms. Elliott. At the hearing, the Department was unable to produce the complete files of some of the students whose records Ms. Halbuer investigated, because school policy dictated destruction of her investigative records after the passage of a certain amount of time. The complete files would have contained the final, official transcripts of the students as well as Ms. Elliott's counseling notes. In some instances, the only proof offered was Ms. Halbuer's conclusory memoranda attesting that certain students' grades had been improperly flagged. In other instances, only the unofficial, editing copy of the transcripts was provided. Ms. Halbuer's honesty is not in doubt. However, it would be inherently unfair to require Ms. Elliott to mount a defense as to these students, more than four years after the fact, without access to the cumulative files and her own counseling notes to refresh her memory. Thus, it must be found that the Department failed to provide prima facie evidence as to any of the fifty-six students save those discussed below. Ms. Elliott's understanding of the flagging procedure was markedly different than that of the administrators. To reiterate, the District's Grading Procedures provide: A student may repeat a failed course during the regular school year or in the summer. If the student then passes the course, the failed course shall remain part of the student's record but shall not be included in the computation of the cumulative grade point average. During the regular school year, a student may repeat a course previously passed for the purpose of grade improvement. In such cases, no additional credit shall be awarded, and all attempts at the course shall be a part of the student’s record. Only the higher grade will be used in computing the cumulative grade point average for graduation. The method by which a failed course may be excluded from computation of the GPA is referred to in the District as "flagging." The text of the Grading Procedures quoted above does not expressly provide instruction as to the proper time for entry of a course flag. However, each District witness who testified on behalf of the Department stated that a course can be flagged only after it has been retaken and the second grade has been posted, and that it is not proper for a guidance counselor to flag a course before the student has completed the course and had the second grade posted by the District. The District's witnesses testified that it is improper to flag a grade while the student is retaking the course. Ms. Elliott testified that she never saw the written grade forgiveness procedure until after the allegations here at issue were first lodged, when her union representative obtained a copy from the District. Ms. Elliott first learned that the District had a forgiveness policy in the early 1990s when she was being trained by Nancy Rhoda, who was then the guidance department chair. Ms. Elliott was instructed to check the students' records for courses that they repeated, and to have those courses flagged. Ms. Elliott's consistent understanding of the policy was that a course could be flagged while the student was repeating the course. Ms. Elliott was one of three guidance counselors at Merritt Island, and was responsible for scheduling approximately 500 students every semester. At times, she was assigned upwards of 700 students. Part of her duties was to schedule her students into classes they wanted to repeat pursuant to the forgiveness policy. Each semester comprised three six-week grading periods. At the close of each six-week grading period, Ms. Elliott would receive computer printouts of each of her assigned students' grades. Thus, there would be a first, second, and third six-week report of the grades her students were receiving in their respective classes. Ms. Elliott typically flagged after she had two six-week grade reports before her, thus having a relatively solid basis for anticipating that the student was going to pass the repeated course. She testified that she flagged courses only when she was convinced the student was "doing fine" in the repeated course. Ms. Elliott would compile a list of students and courses to be flagged and give it to Jan Amico, the data entry clerk, after the second six-week grading period. The flags would be entered during the thirteenth or fourteenth week of the eighteen-week semester, depending on how long it took Ms. Elliott to meet with each student and review their progress. By this time, Ms. Elliott would know whether the student was passing the repeated class. Ms. Amico, who was the data entry clerk at Merritt Island for four years, testified at the hearing. She confirmed that Ms. Elliott's method of flagging had been consistent during Ms. Amico's tenure at Merritt Island. During the first six weeks of a semester, Ms. Elliott assisted all of her assigned students with their class scheduling problems. During the second six weeks, Ms. Elliott typically had more time to review each of her students' grades via the computer printouts provided each guidance counselor. She went through the grade printouts and contacted students who were failing classes to offer academic counseling and tutoring while they still had roughly nine weeks to improve their final semester grade. While Ms. Elliott tried to meet with each student in her charge during the middle of the term, she made it a priority to meet with students who were having difficulty passing classes, those needing special attention, and those she felt might need more support from their parents. If a student received a "D" or "F" grade on the first or second six-week grading report, Ms. Elliott would counsel that student. She would also meet with the teacher to see what could be done to help the student. If needed, Ms. Elliott would arrange for tutoring by one of the volunteers she had recruited from the community. These tutors included her own husband, Joe Elliott, who tutored many students in math. At the end of the semester, Ms. Elliott would meet with her students again. They would review the student's unofficial transcript to make sure the recorded grades were correct, and make any necessary corrections. If the student received a failing grade for a repeated class, Ms. Elliott would have the flag removed from the student's record. Ms. Elliott testified that she was in constant contact with college admissions officers, who asked her to flag courses so they could determine whether their applicants were retaking failed courses. Ms. Elliott stated that the admissions officers followed the students' progress and liked to know whether students applying to their colleges were making extra efforts to master difficult materials. Ms. Elliott testified that she had followed this flagging procedure since the early 1990's, that the teachers, her direct supervisor, the school's department chairs, and the assistant principal in charge of guidance all knew her method for flagging grades, and that no one had ever told her it was inappropriate until Ms. Halbuer did so in August 1998. Ms. Elliott testified that even when Ms. Halbuer told her that she should wait until the end of the semester to flag courses, there was no implication that Ms. Elliott had been doing anything wrong. Rather, Ms. Halbuer indicated that the new data entry clerk was just learning the TERMS system and was overwhelmed with work, and so the entering of course flags would have to wait. As a general matter, it is found that Ms. Elliott's practice of entering the flags prior to the student's receiving a final grade in the repeated course was against the District's policy as generally understood by the District administrators. However, nowhere was this general understanding reduced to writing in unequivocal terms. The understanding may be inferred from the written Grading Procedure, but nothing in the procedure may fairly be read to forbid Ms. Elliott's longstanding method of flagging. To the extent that Ms. Elliott's flagging of individual student grades followed the procedure she described, i.e., the student was enrolled in the repeated class, appeared to be passing the class at the two-thirds point of the semester when the flag was entered, and Ms. Elliott corrected the record at the end of the semester, she cannot be found to have violated a clearly stated policy of the District. Mr. Dugan, Ms. Halbuer, and Ms. Ebersbach all testified that Ms. Elliott's method of flagging artificially inflated her students' GPA's and distorted their relative class standing. This concern was valid but transitory, to the extent that Ms. Elliott followed her stated procedure. A student's GPA would be inflated for the four or five weeks of the semester between the time the flags were first entered and the final grades were posted. After the grades were posted, the flag would either be validated or removed by Ms. Elliott, ensuring the accuracy of the GPA and class standing reflected on the official transcript. As noted above, the Department was not able to produce the complete files for all of the fifty-six students whose records Ms. Elliott is alleged to have improperly flagged. The students discussed below were those for whom the Department was able to produce records sufficient to establish the circumstances of the flagging and to refresh Ms. Elliott's memory as to those circumstances. As to Student B.H., Ms. Halbuer discovered that Ms. Elliott entered a course flag for B.H.'s "F" grade in Algebra I Honors for the first semester of the 1995-96 school year, despite the fact that B.H. repeated Algebra I rather than the honors course. Ms. Halbuer testified that it is improper to flag an honors course with the grade from a regular course, even where the course material is the same. Ms. Elliott conceded that she flagged the honors course based on B.H.'s successfully completing the regular Algebra I course. Her rationale was that a student must receive a teacher's recommendation to enroll in an honors course, and no teacher would have recommended B.H. to repeat Algebra I Honors after she failed it once. Also, Ms. Elliott believed it proper to enter the flag because the course work in Algebra I was the same as Algebra I Honors, the only difference being that the latter class would be smaller, have a better teacher, and involve more homework. Ms. Elliott did not consult with her superiors prior to entering this flag, which had the effect of increasing B.H.'s GPA. It is found that Ms. Elliott improperly flagged B.H.'s grade for Algebra I Honors, but that she did so in a good faith, though mistaken, belief that it was proper to do so. As to Student D.H., Ms. Halbuer testified that she personally compiled and reviewed D.H.'s student records and found that Ms. Elliott entered an improper flag for D.H.'s "D" and "C" grades in Algebra II Honors for the first and second semesters of the 1995-96 school year, though D.H. repeated regular Algebra II. As with Student B.H., D.H. was not entitled to receive grade forgiveness for the grades received in the honors course when the honors course was not retaken. It is found that Ms. Elliott improperly flagged D.H.'s grade for Algebra II Honors, but that she did so in a good faith, though mistaken belief, that it was proper to do so. As to Student L.H., Ms. Halbuer found that Ms. Elliott flagged an "F" grade L.H. received in Algebra I in the second semester of the 1995-96 school year. For this flag to have been appropriate, L.H. would have had to either repeat the second semester of Alegbra I or complete two semesters of Applied Math II. L.H. in fact completed only one semester of Applied Math II. Ms. Halbuer testified that without the two semesters of Applied Math II or a successfully completed second semester of Algebra I, L.H. did not have the requisite math requirements for graduation. L.H. nonetheless was allowed to graduate from Merritt Island in 1998 without ever taking the second semester of Applied Math II, with a transcript certified by Ms. Elliott. Ms. Elliott testified that L.H. had the three math credits required to graduate, and met the graduation requirements that were in place for the class of 1998. It is found that the Department failed to demonstrate that L.H. should not have graduated, but did demonstrate that Ms. Elliott improperly flagged L.H.'s grade for Algebra I and offered no adequate justification for having done so. As to Student J. E.-N., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed the student's records and found that Ms. Elliott entered an improper course flag for an "F" in Classical Literature and an "F" in Applied Math III, both for the first semester of the 1997-98 school year. Ms. Elliott certified J. E.-N. for graduation in 1998. Without the two flags, J. E.-N. would not have had the requisite 2.0 GPA for graduation. Ms. Elliott admitted flagging the Applied Math III grade, but stated that she did so pursuant to a precedent set by Mr. Dugan when he was an assistant principal at Merritt Island. J. E.-N. was a student with very limited proficiency in English. Ms. Elliott testified that Mr. Dugan's practice had been to apply forgiveness for math classes to such students once they had passed the high school competency test in math. J. E.-N. had passed the high school competency test. As to the flag for Classical Literature, Ms. Elliott testified that J. E.-N. took English IV in night school, and that English IV was equivalent to Classical Literature. It is found that Ms. Elliott improperly flagged J. E.-N.'s grade for Applied Math III before consulting with Mr. Dugan or some other superior to ascertain that she was applying a recognized school policy. Ms. Elliott's flag of the Classical Literature class was another example of her belief that "equivalent" courses could count as repeated courses for purposes of flagging, whereas the administrators who testified consistently held that only identical courses could be repeated for forgiveness. As to both flags for J. E.-N., it is found that Ms. Elliott entered them in a good faith, though mistaken, belief that it was proper to do so. As to Student A.L., Principal Dugan and Assistant Principal Halbuer both testified that they personally reviewed A.L.'s student records and found that Ms. Elliott improperly flagged a tenth-grade Algebra II Honors course prior to A.L.'s completing the same course and receiving a higher grade, which is against their interpretation of district policy. A.L. in fact repeated Algebra II Honors and passed the course in the eleventh grade. The evidence demonstrated that Ms. Elliott flagged the course prior to A.L.'s having successfully completed the retaken course, but that she did so in the good faith belief that it was proper to do so. Student M.M. had completed ninth grade at Jefferson Middle School, then transferred to Merritt Island for tenth grade in the 1998-99 school year and participated in cheerleading. Gary Shiffrin, the principal at Jefferson Middle School, testified that M.M. returned to the middle school during the fall of her tenth grade year and asked Mr. Shiffrin if she could speak to one of her former teachers. After the teacher spoke to M.M., Mr. Shiffrin learned that M.M. had requested the opportunity to make up some work she had missed from the previous semester at Jefferson Middle School. Mr. Shiffrin denied M.M.'s request to make up work in an attempt to receive a higher grade, because "the time element had certainly passed." Because he thought M.M.'s request was "kind of unusual," Mr. Shiffrin contacted Mr. Dugan and informed him of what had taken place. Mr. Dugan investigated the matter and discovered that, on August 13, 1998, Ms. Elliott had entered course flags for two semesters of Spanish I from M.M.'s ninth grade year at Jefferson Middle School. The resulting GPA made M.M. eligible to cheer. On August 21, 1998, Ms. Halbuer pulled and reviewed the records of all of Ms. Elliott's cheerleaders. She concluded that M.M. should not have had course flags on her record. She discussed the flagging issue with Ms. Elliott, as described above. On August 24, 1998, Ms. Elliott removed the flags. Removal of the flags meant that M.M. was no longer eligible to cheer. Her parents sought over $700.00 in reimbursement of cheerleading expenses from Merritt Island as a result of this incident. In the case of M.M., the Department did not offer complete records to indicate whether the student was enrolled in the Spanish courses at the time Ms. Elliott flagged her prior grades. Ms. Elliott contended that her removal of the flags was not an admission of wrongdoing, but an indication of her willingness to accept direction from Ms. Halbuer on the issue of flagging. Without the complete records, it cannot be determined whether Ms. Elliott flagged the grades pursuant to her understanding of the flagging policy, or whether she did so without any justification at all. It is found that the evidence was insufficient to demonstrate that Ms. Elliott violated clear District policy in flagging the grades of M.M. As to Student B.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed B.M.'s student records and discovered that Ms. Elliott had improperly flagged a "D" grade in Algebra II for the second semester of the 1997-98 school year. The flag was entered on August 13, 1998, though B.M. did not enroll for the second semester of Algebra II until February 1999. On February 15, 1999, Ms. Halbuer instructed the data entry clerk to remove the flag, thus reducing B.M.'s GPA. Ms. Elliott testified that B.M. was a learning disabled student whose parents monitored his progress closely to ensure he would be eligible for college. Ms. Elliott met with B.M.'s parents in August 1998, at the start of B.M.'s senior year. The parents were aware of the availability of grade forgiveness, and wanted to make sure Ms. Elliott knew that their son would be repeating both semesters of Algebra II during the 1998-99 school year. Ms. Elliott flagged the second semester of Algebra II with the intent of monitoring B.M.'s progress throughout the year and obtaining tutoring assistance if he encountered difficulty. Ms. Elliott testified that she mistakenly neglected to flag the first semester of Algebra I. Ms. Elliott testified that the flag served to notify colleges that B.M. was repeating the entire year of Algebra II, a sign of maturity in attempting to improve his grades and master the material. Ms. Elliott testified that she did monitor B.M.'s progress until she was forced off the Merritt Island campus. It is found that Ms. Elliott's flagging of B.M.'s second semester Algebra II course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had even enrolled to repeat the class. The distortion of B.M.'s GPA would have endured, not for a few weeks as in most instances of Ms. Elliott's flags, but for the entire 1998-99 school year, had Ms. Halbuer not removed the flag. Ms. Elliott testified that B.M.'s overall GPA was not inflated because there were other repeated classes on his transcript for which he did not receive credit. Ms. Elliott may have been correct on this score, but cannot justify an improper flag by pointing to other flags that should have been but were not entered. Ms. Elliott's testimony as to her salutary reasons for entering the flag is credited, but is insufficient to justify the timing of the flag in this instance. As to Student A.M., Mr. Dugan and Ms. Halbuer both testified that they personally reviewed A.M.'s student records and found that, on August 26, 1998, Ms. Elliott entered an improper course flag for A.M.'s "D" grade in Algebra I for the first semester of the 1995-96 school year. This flag was entered after Ms. Halbuer's initial August meeting with Ms. Elliott as to the proper flagging procedure. A.M. was enrolled to retake Algebra I at the time of the flag, but had only just commenced the class. A.M.'s grade in the retaken Algebra I was not posted until January 1999. It is found that Ms. Elliott's flagging of A.M.'s first semester Algebra I course improperly deviated from District policy. Even according to the procedure Ms. Elliott normally followed, it was premature to flag a course before the student had demonstrated progress sufficient to satisfy Ms. Elliott that she would likely pass the retaken course. As to Student B.W., Ms. Ebersbach and Ms. Halbuer testified that they each personally reviewed B.W.'s student records and discovered that, on September 10, 1998, Ms. Elliott changed B.W.'s letter grade in Integrated Science from a "D" to a "B" for the first semester of the 1998-99 school year. While conceding that her computer code appeared on the grade change, Ms. Elliott flatly denied changing B.W.'s grade. B.W. was not a student assigned to Ms. Elliott, and she had no recollection of him. Her planning book for the relevant date and time indicated that she was not even in the guidance office when the grade change was made. Ms. Elliott theorized that another counselor may have made the change, using her code. Ms. Elliott's denial is credited. Her testimony throughout this proceeding was forthright and honest, even when detrimental to her own case. Aside from the S.H. situation, which she adequately explained, Ms. Elliott was accused of changing a grade only in this one instance out of fifty-six alleged violations of District policy. It is found that the Department failed to demonstrate that Ms. Elliott changed B.W.'s Integrated Science grade. Testimony was also offered as to the following students: J. McD., S. McC., P.L., M.L., S.K., K.L., and a second student with the initials D.H. In the cases of these students, the Department failed to produce records sufficient to permit Ms. Elliott to answer the charges. The Department proffered the transcripts of S.K., K.L., P.L., S. McC., and J. McD. at the hearing as Exhibits 54 through 58. These were not admitted because they had not been provided to Ms. Elliott during the pre-hearing discovery process. It is noted that the failure to provide these transcripts to Ms. Elliott prior to the hearing was not due to any negligence or misfeasance by counsel for the Department. The documents were simply unavailable to the Department before the final hearing began. E. The "vendetta" defense Evidence was presented at the hearing aimed at demonstrating that Mr. Dugan, the principal of Merritt Island, pursued these allegations against Ms. Elliott not on their merits but because he held a longstanding grudge against her. This grudge was alleged to have its origin in Ms. Elliott's testimony in the criminal trial of Doris Roberts, a former teacher charged with committing sexual acts with students at Merritt Island. At the trial, there was some conflict in the testimony as to whether Mr. Dugan, then an assistant principal, had ignored information that should have led him to investigate Ms. Roberts well before her activities were finally exposed and stopped. Ms. Elliott's testimony at the criminal trial is claimed to have contradicted Mr. Dugan's testimony on that point. Ms. Elliott claimed that every school employee whose testimony at the criminal trial contradicted that of Mr. Dugan was subjected to harassment by him, and either retired from the District or transferred away from Merritt Island. Ms. Elliott presented the testimony of two witnesses, Marvin Gaines and Doris Glenn, who Ms. Elliott alleged were victims of Mr. Dugan's vendetta. Their testimony indicated that Mr. Dugan could be a harsh administrator, could be less than straightforward in his dealings with employees, and engaged in juvenile and unprofessional name-calling when displeased with subordinates. Ms. Glenn, a retired assistant principal with 33 years of experience at Merritt Island, made it clear that Mr. Dugan tended to be arbitrary. One's relationship with Mr. Dugan "depended on what he had for breakfast." Ms. Glenn went on say, "If you were in, you were in. If you were out, buddy, you were out. I mean solid out." Ms. Glenn testified that she spent a good deal of time in Mr. Dugan's bad graces, and attributed her retirement to the harassment ensuing from her testimony in the Roberts case. Significantly, Ms. Glenn stated that she had never known Mr. Dugan to invent false charges in an effort to harm an employee. Mr. Dugan would go over the work of a disfavored employee with a fine-tooth comb. In her words, "He'd be looking for [something wrong] if you were on his out list. He would be looking for any little flake of dandruff." If Mr. Dugan "got on you," then "you'd better be strong and you'd better be ethical. You better be able to clean your plate up good because if you messed up he'd have your ass." However, Ms. Glenn did not believe that Mr. Dugan would fabricate allegations against an employee. Mr. Gaines, who had 35 years with the District including ten years at Merritt Island, also had a poor relationship with Mr. Dugan. Like Ms. Glenn, Mr. Gaines believed that Mr. Dugan had a "list" of those he disliked. Mr. Gaines described Mr. Dugan as a "very retaliatory person" and a "big liar." However, the animosity in Mr. Gaines' case appeared related less to the Roberts case than to the fact that Mr. Dugan lobbied District administrators to pass over Mr. Gaines for a promotion. In fact, Mr. Gaines described his relationship with Mr. Dugan as "all right for a while" in the immediate aftermath of the Roberts case. While Mr. Gaines believed that Mr. Dugan had lied to him concerning the promotion, he had never known Mr. Dugan to fabricate allegations of wrongdoing. In summary, there was credible evidence that Mr. Dugan was vituperative and would not hesitate to go after a subordinate against whom he held a grudge. Mr. Dugan denied any such grudge against Ms. Elliott. Aside from the investigation itself, Ms. Elliott offered no evidence that Mr. Dugan was pursuing a vendetta against her. To the contrary, she testified that Mr. Dugan had been supportive of the cheerleading team. It is also noted that Mr. Dugan did not initiate the investigation of Ms. Elliott. Ms. Halbuer and Ms. Vann separately approached him with suspicions as to Ms. Elliott's actions. When Ms. Vann discussed her allegations at the principals' meeting, Mr. Dugan was not particularly eager to pursue them. He told Ms. Vann to document her allegations in writing before he would consider them. In any event, an alleged vendetta by Mr. Dugan against Ms. Elliott would have relevance only as a motive for bringing false allegations against her. No evidence was presented that Mr. Dugan ever fabricated evidence against any employee, including Ms. Elliott. The alleged grudge may have spurred Mr. Dugan to investigate the matter more fully. However, his motive is irrelevant because his factual allegations were essentially accurate, even though the conclusions he drew from them were overstated. IV. Summary of Findings Three material allegations of fact were set forth in the Administrative Complaint. The first allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent improperly attempted to persuade instructional staff members to change failing grades they issued to one or more students to higher, passing grades without proper justification. It is found that the Department failed to offer clear and convincing evidence that Ms. Elliott improperly attempted to persuade the three faculty members from Cocoa Beach to change the grades of Student S.H. In fact, all three of the faculty members testified that Ms. Elliott did not ask them to change the grades. The second factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent changed the grades of one or more students to a grade higher than that assigned by the instructional staff member. These changes were made without academic or other proper justification. It is found that the Department offered clear and convincing evidence that Ms. Elliott changed the grades of Student S.H. However, the evidence also demonstrated that Ms. Elliott made those changes as a demonstration to S.H. of how she could potentially raise her GPA. Ms. Elliott had no intention of effecting permanent changes to S.H.'s grades, as evidenced by the fact that Ms. Elliott and S.H. acknowledged that S.H. was not eligible for cheerleading during the Fall semester of 1998. The third factual allegation stated: During the 1997-1998 and 1998-1999 school years, the Respondent "flagged" grades of one or more students in such a manner that the grades would not count in the computation of the student(s) grade point average, thereby artificially and improperly raising the grade point average of the student(s). It is found that the Department offered clear and convincing evidence that Ms. Elliott improperly flagged the grades of Students L.H., B.M., and A.M. It is found that the Department did not offer evidence sufficient to demonstrate that Ms. Elliott improperly flagged the grades of Students M.M. and B.W. It is found that the Department offered clear and convincing evidence that Ms. Elliott's flagging of the grades of Students M.P., B.H., D.H., J. E.-N., and A.L. violated the District's Grading Procedures as understood by District administrators. However, it is also found that Ms. Elliott's flagging of these students' grades was consistent with her understanding of the flagging policy and with the manner in which she had flagged grades for several years. It is found that the Department offered clear and convincing evidence that Ms. Elliott obtained Ms. Peters' TERMS access code without fully disclosing the reasons why she could not use her own code, and further that she attempted to access the TERMS program after she had been expressly forbidden to do so by Mr. Dugan. It is found that the Department failed to prove by clear and convincing evidence that Ms. Elliott's motive for flagging grades was to make the subject students eligible to participate in cheerleading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(4)(b) and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3)(a) or (d), or Rule 6B-1.006(5)(h), Florida Administrative Code. It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active guidance counselor in the State of Florida. DONE AND ENTERED this 8th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 8th day of May, 2003.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 for Petitioner to suspend Respondent from his employment as a teacher for ten days without pay in Case No. 19-3380; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to terminate Respondent's employment as a teacher in Case No. 19-3381.
Findings Of Fact The Parties Petitioner is the entity charged with operating, controlling, and supervising all district public schools in Broward County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33. Respondent is employed by the District as a mathematics teacher at Miramar High School ("MHS") pursuant to a professional services contract issued in accordance with section 1012.33(3)(a). He holds a professional educator's certificate in mathematics for 6th through 12th grades. Respondent was employed by the District in 2007, and has been a teacher at MHS since the 2007-2008 school year, with the exception of most of the 2015-2016 school year, during which he was administratively reassigned with pay pending the outcome of a personnel investigation. He returned to teaching at MHS for the 2016-2017 school year, and was a teacher at MHS during the 2018-2019 school year, when the conduct giving rise to these proceedings is alleged to have occurred. The Administrative Complaints February Administrative Complaint The February Administrative Complaint, which gives rise to Case No. 19-3380, alleges that during the 2017-2018 school year and the first semester of the 2018-2019 school year, Respondent engaged in conduct that violated specified statutes, DOE rules, and School Board policies. Pursuant to the February Administrative Complaint, Petitioner seeks to suspend Respondent from his employment as a teacher for ten days without pay. Specifically, the February Administrative Complaint alleges that after previously having been disciplined for making racially insensitive and inappropriate comments to students, Respondent continued to use embarrassing or disparaging language toward students. As a result, a cease and desist letter was issued to Respondent on or about March 23, 2017, directing him to cease engaging in such conduct. The Administrative Complaint alleges that Respondent continued to use racially insensitive, embarrassing, and disparaging language toward students—specifically, that he referred to an African-American male student as "boy." The February Administrative Complaint also alleges that Respondent threatened to remove students who talked from his class; graded students based on their behavior, rather than their work product; and failed to grade student work in a timely manner. As a result of this alleged conduct, Respondent received a meeting summary memorandum on or about December 7, 2017. The February Administrative Complaint alleges that Respondent still failed to contact the parents of students who were failing and engaged in unfair grading practices, resulting in issuance of another meeting summary memorandum to him on or about April 27, 2018. The February Administrative Complaint alleges that in the first semester of the 2018-2019 school year, during a Code Red Drill, Respondent is alleged to have engaged in racially insensitive conduct by disparately disciplining African-American students for engaging in the same type of conduct in which white and Hispanic students engaged, without any disciplinary consequences. The Administrative Complaint also alleges that during the Code Red Drill, Respondent was so disengaged from his students that he did not know one of his student's name and, consequently, wrote a disciplinary referral for the wrong student. The February Administrative Complaint alleges that Respondent engaged in conduct demeaning to students. Specifically, it is alleged that Respondent did not respond to student questions regarding how to do problems; embarrassed a student by saying he did not understand fifth grade math; and wrote "1 + 1" on the board to mock students in his class. He also allegedly reduced a student's class participation grade for talking. The February Administrative Complaint alleges that Respondent spoke to a "black girl who is Jamaican in Creole because he assumes she is Haitian." The February Administrative Complaint alleges that Respondent embarrassed and degraded a student by saying he did not understand the classwork "because it's not fifth grade math." The February Administrative Complaint also alleges that Respondent demeaned students by saying "'slick stuff,' such as 'math is simple and we are used to [second] or [fifth] grade math.'" The February Administrative Complaint alleges that Respondent lowered the grade of a student for talking, and told her that she and several other students were "on his 'watch list'" of students who would have their grades lowered for talking. The February Administrative Complaint further alleges that when that student asked about Respondent's grading practices, he responded "you ask too much questions," causing the whole class to laugh. The February Administrative Complaint alleges that on or about October 10, 2018, during the administration of the Preliminary Scholastic Aptitude Test ("PSAT"), Respondent did not follow proper testing protocol. Specifically, it is alleged that Respondent did not pick up the testing materials on time, started the test late, and did not read all of the directions to the students. It is also alleged that he did not collect book bags and cell phones and place them at the front of the room, and that a cell phone rang during the test. Additionally, he is alleged to have allowed students to talk loudly during the test. The February Administrative Complaint alleges that Respondent took points off of a student's grade for talking. The February Administrative Complaint alleges that Respondent refused to allow students who had missed class due to a band trip to make up their class work. The February Administrative Complaint alleges that Respondent made demeaning comments about students' writing; used the word "horrible" to describe their work, which made them feel "dumb or stupid"; was "disrespectful and sarcastic"; and deducted students' class participation points for talking or asking for a pencil or paper. The February Administrative Complaint alleges that Respondent talked to students in a demeaning manner about being "slow" and told students he thought the Chinese were smarter than Americans. May Administrative Complaint The May Administrative Complaint, which gives rise to Case No. 19-3381, alleges that in the second semester of the 2018-2019 school year, Respondent continued to engage in conduct that violated specified statutes, DOE rules, and School Board policies. Specifically, the May Administrative Complaint alleges that in February 2019, Respondent threatened to put tape over students' mouths for talking; disparaged students through racially insensitive treatment and comments; and made insulting and offensive comments to students regarding their mental health and ethnicity. The May Administrative Complaint also alleges that Respondent wrote a "red list" of students' names on the board who were disruptive or talking and continued to engage in inappropriate grading practices, such as lowering students' grades as a means of discipline for behavior issues. The May Administrative Complaint also alleges that Respondent continued his practices of not contacting parents of failing students; not writing referrals to deal with disciplinary matters; and failing to create a discipline plan for dealing with behavior issues in his classroom, as directed. In addition, the May Administrative Complaint alleges that Respondent claimed that during the past four years, Respondent's students were manipulated by an assistant principal, Ms. Hoff, to write false statements against him, notwithstanding that Hoff had not been employed at MHS for the previous two years. Pursuant to the May Administrative Complaint, Petitioner seeks to terminate Respondent's employment as a teacher. Stipulated Facts Regarding Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of disciplinary corrective actions while employed as a teacher with the District.8 On or about February 13, 2013, Respondent received a verbal reprimand for failing to meet the performance standards required of his 8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), states: The types of corrective action may include, but are not limited to the following employment actions: verbal reprimands, written reprimands, suspension without pay, demotion, or termination of employment. There are other types of actions to encourage and support the improvement of employee performance, conduct or attendance that are not considered disciplinary in nature. These actions may include, but are not limited to: coaching, counseling, meeting summaries, and additional training. Policy 4.9, Corrective Action. Respondent cannot be subjected to discipline in these proceedings for previous violations of statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. & Prof'l Reg., Case No. 11-4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple administrative punishments cannot be imposed for a particular incident of misconduct). However, under Policy 4.9, section III, the history of disciplinary corrective actions is relevant to determining the appropriate penalty, if any, to be imposed in these proceedings, and history of disciplinary and non-disciplinary corrective actions is relevant to determining whether Respondent subsequently engaged in conduct constituting gross insubordination, as charged in these proceedings. position, by failing to follow School Board policy and procedures and engaging in unprofessional conduct. On or about May 30, 2013, Respondent received a written reprimand for not following proper procedures, and being insubordinate by failing to follow such procedures after numerous directives. Specifically, he failed to contact the parents of students who had been habitually truant or were failing his class; arrived late to work several times; lied about parking in the student parking lot; and left students unsupervised on multiple occasions. On November 8, 2016, Respondent received a verbal reprimand for not providing accommodations to his exceptional student education ("ESE") students; not taking attendance; not grading students’ work or grading students’ work inaccurately; and failing to provide feedback to students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. This five-day suspension resulted from a personnel investigation by the District police department into allegations that Respondent made racist and racially insensitive remarks to students. The request for the investigation was made on or about October 16, 2015. Respondent was administratively reassigned out of the classroom on November 6, 2015, and was not released from administrative reassignment until August 15, 2016. Respondent originally challenged the five-day suspension in Case No. 17-1179TTS, but later withdrew his challenge, and the case was closed on May 19, 2017. The Commissioner of Education ("COE") also filed an administrative complaint with the Education Practices Commission, based on Respondent making racially, ethnically, and/or socioeconomically-driven disparaging comments toward students. Respondent entered into a settlement agreement with the COE under which he received a written reprimand; was fined and placed on probation for one year; and was assessed costs for monitoring his probation. The written reprimand was placed in his District personnel file. On or about October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; grading inaccuracies; refusing to accept work; grading student behavior rather than student work product; failing to contact parents; failing to follow a discipline plan; failing to grade student work in a timely manner; entering incorrect grades; failing to provide ESE accommodations to students entitled to receive such accommodations; and making disparaging remarks about colleagues. This letter of reprimand resulted from a personnel investigation conducted by the District police department regarding numerous allegations against Respondent. These allegations included, but were not limited to, unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; lowering grades based on behavior; failing to contact parents; grading and attendance inaccuracies; providing fake lesson plans to his assistant principal; and making remarks to a student that a fellow math teacher did not know what she was doing. The request for the investigation was made on or about November 21, 2016. Respondent did not challenge the letter of reprimand. Stipulated Facts Regarding Non-Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of non-disciplinary corrective actions while he was employed as a teacher with the District. On or about July 16, 2011, Respondent received a concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures, and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 20, 2011, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 31, 2012, Respondent received another concerns and expectations memorandum for failing to follow the District’s grading system. On or about January 7, 2013, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records of students and failing to follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his class; and making students feel disparaged or embarrassed. He was directed to ensure that students understand his grading criteria for classwork and homework; use strategies to help students with new knowledge; use strategies to help students practice and deepen the new knowledge in all lessons and activities; and not intentionally expose students to unnecessary embarrassment or disparagement. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students; failure to contact parents or write referrals for behavior issues; and concerns about his failure to provide daily remediation. Respondent was advised that he was expected to create and maintain a positive and pleasant learning environment in the classroom; use effective instructional strategies and feedback techniques that do not embarrass students; create and follow a discipline plan for his classroom; contact parents when students are failing; write referrals for referable acts; and remediate and teach students daily. Respondent was informed that his failure to correct these issues may result in disciplinary action. On or about March 23, 2017, Respondent was issued a cease and desist letter for his continued use of embarrassing and disparaging language toward students. On or about December 7, 2017, Respondent received a meeting summary for his use of embarrassing and condescending language towards the students, by referring to an African-American male student as "boy"; threatening to remove students from his class if they misbehaved during a formal observation; grading students on their behavior rather than their work product; and failing to grade student work in a timely manner. He was directed to refrain from using condescending language that makes students feel inferior in math; learn his students’ names and refer to them by name; create and follow a discipline plan for his classroom without removing students unless they have completely disrupted the teaching and learning process in the classroom; enter grades in a timely manner and refrain from deducting participation points from students' grades for talking; and contact parents and write referrals for student misbehavior. On or about April 27, 2018, Respondent received a meeting summary memorandum for failing to contact parents of students who had D's or F's in his classes, and for keeping inaccurate grades. Findings of Fact Based on Evidence Adduced at Final Hearing Based on the preponderance of the competent substantial evidence; the following Findings of Fact are made regarding the conduct charged in the February Administrative Complaint and the May Administrative Complaint. February Administrative Complaint The February Administrative Complaint charges Respondent with having engaged in conduct during the first semester of the 2018-2019 school year that is alleged to violate statutes, DOE rules, and School Board policies. By way of background, Tevin Fuller and Julian Cardenty were students in Respondent's financial algebra class in the 2017-2018 school year. Both credibly testified that during a class in the 2017-2018 school year, Respondent called Fuller, who is African-American, "boy" and "bad boy." Both Fuller and Cardenty were offended by Respondent's use of the word "boy" in referring to Fuller, and considered it a racially demeaning remark. They reported Respondent's conduct to Assistant Principal J.P. Murray. Fuller credibly testified that as a result of Respondent's disrespectful conduct toward him, he avoided attending Respondent's class. As discussed above, in December 2017, as a result, Respondent previously had been issued a summary memorandum—a non-disciplinary corrective action—which instructed him to, among other things, cease using racially demeaning terms toward African-American students, and cease using condescending language that made students feel inferior regarding their mathematical ability. The credible, consistent evidence establishes that during the first semester of the 2018-2019 school year, Respondent continued to make racially insensitive and demeaning comments, and engage in conduct directed toward students in his classes that they found embarrassing and offensive. Specifically, several students testified, credibly, that on one occasion during the 2018-2019 school year, after Respondent gave an unannounced quiz to his financial algebra class, he stated that he would not grade the quiz papers because he could "see the F's on their foreheads," or words to that effect. The credible evidence establishes that the students considered this remark as demeaning to their ability and intelligence, and they were offended. This testimony corroborated several written statements, admitted into evidence, which were provided by students at or about the time this incident took place. Two students, Malik Cooper and Nyesha Dixon, credibly testified that they witnessed Respondent belittle and mock a student, Jordan Lee, when he asked for assistance on a class assignment in Respondent's financial algebra class. Specifically, they saw and heard Respondent comment to Lee that he (Lee) did not understand the lesson because he could "only understand fifth grade math," or words to that effect. Dixon and Cooper both credibly testified that the whole class laughed at Respondent's comment to Lee. Dixon testified, credibly, that Lee appeared shocked and embarrassed by Respondent's comment. Although Petitioner did not present Lee's testimony at the final hearing, Lee provided a written statement that was admitted into evidence, describing this incident. An email from Lee's mother to Murray regarding this incident corroborates Dixon's and Cooper's testimony and Lee's reaction to Respondent's insulting comment to him. Two students, Breanna Dwyer and Malik Cooper, credibly testified that on one occasion, Respondent told his students that the Chinese were smarter and learned faster than Americans, a comment that the students interpreted as belittling their intelligence. Two students, Dorcas Alao and Nyesha Dixon, testified, credibly, to the effect that Respondent singled out Haitian students and made remarks to them, which those students found offensive. Specifically, they testified that Respondent would attempt to speak to Haitian students in Creole, that the students told him they found his behavior offensive, and that Respondent would "just laugh." Several students credibly testified, in more general terms, that Respondent frequently spoke down to them, treated them in a condescending manner, made rude remarks to them, and was disrespectful toward them, and that his conduct and remarks were insulting and made them feel as if they were ignorant and unintelligent. Additionally, one student, Whitney Malcolm, testified, credibly, that in response to her asking a question about a syntax error on a calculator, Respondent yelled at her loudly enough for the entire class to hear. Malcolm testified, credibly, that she was embarrassed by the incident. The credible evidence establishes that Respondent continued to lower students' academic course grades as a means of addressing behavioral issues, notwithstanding that he had been issued a meeting summary on April 27, 2018, directing him not to do so. Specifically, several students testified, credibly, that Respondent kept a "watch list" of students for whom he deducted points off their academic course grade for behavioral issues, such as talking in class. Murray credibly testified, and the MHS Faculty Handbook for the 2018-2019 school year expressly states, that student misbehavior cannot be reflected in the academic course grade, and, instead, is to be addressed in the conduct grade. Murray testified that he counseled Respondent numerous times on this issue and directed him to cease deducting points from students' academic course grades for behavior issues. The evidence regarding Respondent's history of disciplinary and non-disciplinary corrective actions bears out that he repeatedly has been directed not to lower students' academic course grades as a means of dealing with classroom behavioral issues. The competent substantial evidence also establishes that Respondent did not follow proper testing protocol when administering the PSAT to his homeroom students on October 10, 2018. Specifically, notwithstanding that all teachers, including Respondent, who were administering the PSAT had been given training and provided written instructions regarding picking up the exams, reading the instructions to the students, and administering the exams, Respondent did not timely pick up the exams on the day it was administered. The exams for his homeroom students had to be delivered to the room in which he was to administer the exam, and as a consequence, he was late starting the exam administration. The credible evidence establishes that Respondent instructed the students to turn off their cell phones, place them in their book bags, and put their book bags away. However, he did not collect students' book bags or require students to place their book bags at the front of the room, as expressly required by the exam proctor reminders document and the PSAT/NMBQT Coordinator Manual, both of which previously had been provided to the teachers, including Respondent, who were administering the PSAT. As a result of Respondent's failure to follow exam protocol, the students kept their book bags next to, or under, their desks, in violation of that protocol. A cell phone rang during one of the testing sessions. The persuasive evidence establishes that Respondent had instructed students to silence their cell phones and put them away; thus, the cell phone ringing during a testing session was the result of a student failing to follow instructions, rather than Respondent failing to provide such instructions. Two teachers, Tamekia Thompson and Richard Cohen, went to Respondent's classroom at different times on the day the PSAT was administered, to tell the students in his classroom to be quiet. Amaya Mason, a student in Respondent's homeroom class who took the PSAT that day, complained in a written statement, and subsequently testified, that students were talking during the testing sessions, while the students were in the process of taking the exam. Other students who took the PSAT in Respondent's homeroom class that day testified that students did not talk during the testing sessions, but that they did talk loudly during breaks between the testing sessions. Thus, the evidence does not definitively establish that students were talking during the testing sessions themselves. As a result of these testing protocol irregularities, Alicia Carl, the Student Assessment Specialist at MHS, contacted the College Board regarding the testing conditions in Respondent's classroom. Ultimately, the students' exam scores were not invalidated. The February Administrative Complaint alleges that Respondent refused to allow two students, Dejah Jeancharles and Asia Parker, to make up classwork they had missed, notwithstanding that they had excused absences due to a band trip. However, the credible evidence established that Respondent ultimately did allow the students to make up the missed work. The February Administrative Complaint charges Respondent with disciplining African-American students during a Code Red Drill conducted on or about September 6, 2018, while not subjecting white and Hispanic students to discipline for engaging in the same conduct during the Code Red Drill. The students' testimony regarding whether Respondent engaged in this conduct was conflicting, and the greater weight of the competent, credible evidence fails to establish that Respondent engaged in this behavior. The February Administrative Complaint alleges that on or about April 27, 2018, Respondent was issued a meeting summary for failing to contact parents of failing students and engaging in unfair grading practices. Murray testified, and Petitioner presented excerpts of Respondent's grade book showing, that as of March 6, 2018, approximately 75 percent of Respondent's students were earning either D's or F's in Respondent's classes. Murray testified that MHS has a policy, stated in the 2018-2019 Faculty Handbook, that teachers "shouldn't have that many D's or F's."9 Murray testified, and Petitioner presented evidence consisting of an email from Murray to MHS Human Relations Specialist Nicole Voliton, stating that he (Murray) had spoken to parents, who told him that Respondent had not contacted them regarding their children's failing grades. Murray also testified that Respondent acknowledged to him that he had not 9 However, the February Administrative Complaint does not specifically charge Respondent with conduct related to the amount of D's and F's his students earned. Additionally, as discussed below, the Faculty Handbook policy does not establish a mandatory compliance standard regarding the amount of D's and F's given students on which disciplinary action can be based. contacted the parents of all students who were failing his courses. Murray's email and his testimony regarding parents' statements made to him constitute hearsay evidence that has not been shown to fall within an exception to the hearsay rule in section 90.802, Florida Statutes, and is not substantiated by any competent substantial evidence in the record; accordingly, the undersigned cannot assign weight to this evidence.10 May Administrative Complaint The May Administrative Complaint charges Respondent with having engaged in conduct in the second semester of the 2018-2019 school year that is alleged to violate DOE rules and Petitioner's policies. The credible evidence establishes that Respondent continued to engage in conduct, directed toward his students, that was demeaning and racially insensitive. Specifically, several students submitted written statements that in February 2019, Respondent threatened to tape students' mouths shut because they were talking in class. Students Dorcas Alao, Breanna Henry, and Darius Gaskin credibly testified about this incident, confirming that Respondent had engaged in such conduct toward students in his class. Alao, who is of Nigerian heritage, testified, credibly, that Respondent remarked to her that if she couldn't understand something in English, he would "say it in Yoruba," or words to that effect. She also testified, credibly, that Respondent told her that she had "mental issues." She was offended by Respondent's comments and reported the incidents to Murray. The credible evidence also establishes that Respondent continued to deduct points from students' academic course grades for behavioral issues, such as talking in class. 10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing or explaining other evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The burden of establishing that hearsay evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on the proponent of the hearsay. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(evidentiary proponent has burden to establish predicate for exception to hearsay rule). To this point, Alao and Henry credibly testified that Respondent deducted points from their academic course grades for talking in class. Murray corroborated this testimony, credibly testifying that he examined Respondent's grade book and confirmed that Respondent had deducted points from their grades. As a result, Henry's class grade dropped a letter grade, from an "A" to a "B." Several students also testified, credibly and consistently, that Respondent did not timely grade their classwork or homework papers, so they were unable to determine what their grades were, even when they accessed the Pinnacle electronic gradebook. The 2018-2019 Faculty Handbook for MHS expressly requires that grades be posted within 48 hours of collecting the assignment/test. Respondent has repeatedly been directed to timely and accurately grade classwork and homework, and to record the grades in Pinnacle so that students and parents can be apprised of student progress in the course. The disciplinary and non-disciplinary corrective actions to which Respondent previously has been subject bear this out. Murray testified, credibly, that in the second semester of the 2018-2019 school year, Respondent still did not timely or accurately grade classwork, homework, or tests, as required by the Faculty Handbook, and as previously directed through disciplinary and non-disciplinary corrective actions, discussed above. The May Administrative Complaint also alleges that Respondent made claims that former assistant principal Cornelia Hoff had manipulated students, during the previous four years, to write false statements about him. Murray testified, credibly, that Respondent did, in fact, make such claims. There was no evidence presented to substantiate any of Respondent's claims against Hoff, and the competent substantial evidence establishes that Hoff had not been employed at MHS for over two years at the time Respondent made such claims. The May Administrative Complaint also charges Respondent with failing to contact parents, write disciplinary referrals, and create a discipline plan for student behavior issues in his classroom, as previously directed. However, Petitioner failed to present any competent substantial evidence to substantiate the allegation that Respondent engaged in this specific conduct during the second semester of the 2018-2019 school year, which is the period covered by the May Administrative Complaint.11 Thus, Petitioner did not demonstrate that Respondent engaged in this conduct during the timeframe covered by the May Administrative Complaint. Witness Credibility Respondent contends, on the basis of inconsistencies between student witness's testimony and written statements regarding various details of Respondent's alleged conduct and surrounding circumstances, that these witnesses were not credible, so that their testimony should not be afforded weight in these proceedings. The undersigned rejects this contention. Although the students' accounts of Respondent's conduct and surrounding circumstances were not uniformly consistent, the inconsistencies concerned minor or collateral details, which the undersigned ascribes to the fact that the students were testifying about incidents that occurred as much as two years earlier. The undersigned found the student witnesses to be credible and persuasive. Crucial to this credibility determination is that the students' testimony was remarkably consistent with respect to whether Respondent 11 The evidence presented regarding this charge concerned conduct that is alleged to have occurred in the first semester of the 2018-2019 school year, which is not addressed in the May Administrative Complaint. Notably, the February Administrative Complaint, which addressed conduct that is alleged to have occurred in the 2017-2018 school year and the first semester of the 2018-2019 school year, did not charge Respondent with having engaged in such conduct. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint violates the Administrative Procedure Act). engaged in, and the significant circumstances pertaining to, the conduct at issue in these proceedings. Findings of Ultimate Fact Under Florida law, whether conduct charged in a disciplinary proceeding constitutes a deviation from a standard of conduct established by statute, rule, or policy is a question of fact to be determined by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged in an administrative complaint violates the statutes, rules, and policies cited as the basis for the proposed disciplinary action is a factual, rather than legal, determination. February Administrative Complaint Here, Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the February Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules, School Board policies, and Florida Statutes. Rule 6A-5.056(2) – Misconduct in Office As found above, Respondent made racially insensitive comments and comments that demeaned and belittled students in his classes. The evidence also established that Respondent yelled at students. As a result, many of his students felt disrespected, embarrassed, and offended. One student, Tevin Fuller, even went so far as to avoid going to Respondent's class in order to avoid Respondent's harassment and disrespectful treatment of him. Respondent's behavior toward his students constituted misconduct in office under Florida Administrative Code Rule 6A-5.056(2), because it disrupted the students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office, pursuant to rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes a teacher's professional obligations to students. Specifically, in making demeaning, racially insensitive, and embarrassing comments to students in his classes, he failed to make reasonable effort to protect his students from conditions harmful to their learning and mental health, in violation of rule 6A-10.081(2)(a)1. He also intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5., and harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and disrespectful comments toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because they violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and in engaging in disrespectful conduct toward his students, Respondent failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed above, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Additionally, as found above, Respondent did not follow established exam protocol when he failed to collect students' book bags and place them at the front of the room during administration of the PSAT to his homeroom class on October 10, 2018, as specified in the PSAT/NMSQT administration manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes. Thus, Respondent failed to perform duties prescribed by law, which constitutes incompetency due to inefficiency under rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language toward students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, Respondent received a meeting summary for making racially insensitive comments to a male African-American student. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive, demeaning, and disrespectful comments to his students during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non- disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination under rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional12 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive and demeaning comments, and engaging in disrespectful conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing 12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com, https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's actions in this regard were done with intention or on purpose; there was no evidence presented from which it reasonably can be inferred that Respondent's actions in this regard were accidental. students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. Section 1008.24 – Test Administration and Security Based on the facts found above, it is determined that Respondent did not follow testing protocol when he failed to collect students' book bags before administering the PSAT on October 10, 2018. However, in order to violate section 1008.24, the failure to follow test administration directions must be done both "knowingly and willfully." Neither "knowingly" nor "willfully" are defined in chapter 1008. Where the legislature has not defined the words used in a statute, the language should be given its plain and ordinary meaning.13 The term "knowingly" is defined as "having knowledge or information"14 or "deliberate, conscious."15 The term "willfully" is defined as "deliberate, voluntary, or intentional."16 The evidence fails to establish that Respondent made the deliberate decision not to collect the book bags, notwithstanding the test manual and exam directions. From the evidence in the record, it is equally reasonable to infer17 that he either did not realize that he needed to collect the book bags, 13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009). It is appropriate to refer to dictionary definitions when construing a statute in order to ascertain the plain and ordinary meaning of words used in the statute. Id.; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary). 14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). 15 Black's Law Dictionary, Deluxe 7th ed., at p. 876. 16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or purposely as distinguished from accidentally or negligently." 17 See Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)(it is the presiding officer's function to, among other things, draw permissible inferences from the evidence). or that he simply forgot to do so. The latter inference is particularly plausible, given that he was running late in beginning administration of the test. Thus, it is found that Respondent did not violate section 1008.24, as charged in the February Administrative Complaint. School Board Policy 4008 - Responsibilities and Duties (Principals and Instructional Personnel) As discussed above, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 6314 – Testing – Assessing Student Achievement School Board Policy 6314, the text of which is set forth in the Conclusions of Law, below, establishes a District-wide policy regarding annual achievement testing. The plain language of the policy states, in pertinent part, "[a] program of achievement testing shall be conducted annually . . . ," and "[t]esting within the Broward County School District should be conducted to . . . [p]rovide parents/guardians with a yearly individual student test report and interpretation for those students who have been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this language, it is clear that Policy 6314 is specifically directed toward annual achievement testing, rather than routine classroom tests and quizzes. Further to this point, nowhere in Policy 6314 is there any language establishing a prohibition on giving unannounced class quizzes, or deciding not to count quiz grades in a class. Additionally, although the February Administrative Complaint cites Policy 6314 as a basis for imposing discipline, the policy does not establish any specific standards of conduct to which instructional personnel must adhere, or which can constitute the basis of disciplinary action for lack of compliance. Petitioner's Proposed Recommended Order cites Policy 6314 as a basis for imposing discipline on Respondent for having given an unannounced quiz in his class on material that he allegedly had not yet taught his class, and then deciding not to grade the quiz "because he could 'read the F's on their foreheads.'" However, as discussed above, the language of Policy 6314 makes clear that it does not apply to routine class tests and quizzes. Additionally, the February Administrative Complaint does not specifically charge Respondent with having engaged in any of this conduct. As discussed herein, Respondent cannot be disciplined for conduct which was not specifically charged in the Administrative Complaint.18 Therefore, even though credible testimony and other evidence was provided showing that Respondent engaged in this conduct, that evidence is relevant only with respect to whether Respondent made demeaning comments to his students. That conduct was charged in the February Administrative Complaint, and, as discussed herein, has been considered in determining that Respondent engaged in conduct constituting misconduct in office, pursuant to rule 6A-5.056(2). School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be 18 Cottrill, 685 So. 2d at 1372 (Fla. 1st DCA 1996). See note 11, supra. violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct established in statutes, DOE rules, and School Board policies. In this case, Respondent has been charged with "Category B" offenses under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets forth a non-exhaustive list of circumstances that may be considered in determining the appropriate penalty for Category B offenses. The racially insensitive and demeaning comments that Respondent repeatedly made to his students, over a substantial period of time in his employment with Petitioner, constitute a severe offense. The evidence establishes that Respondent's comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher—to the point that one student avoided going to class in order to avoid Respondent's racially insensitive and disrespectful conduct toward him. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct, negative impacts on his students. Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He previously has received two verbal reprimands, two written reprimands, and a five-day suspension without pay. Additionally, he has received numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, he has received approximately 14 corrective actions, five of which were disciplinary, between July 2011 and November 2018. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the February Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined or issued non- disciplinary corrective actions. The competent, credible evidence shows that these corrective actions have had little, if any, deterrent effect on Respondent's conduct. Based on the foregoing Findings of Fact, it is determined that Respondent should receive a ten-day suspension without pay in Case No. 19-3380, for having engaged in conduct that was charged in the February Administrative Complaint and proved by a preponderance of the competent substantial evidence. May Administrative Complaint Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the May Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules and School Board policies. Rule 6A-5.056(2) – Misconduct in Office As found above, in the second semester of the 2018-1019 school year, Respondent continued to make racially insensitive and disparaging comments, and engage in demeaning and disrespectful conduct, directed toward his students. Specifically, he directed racially insensitive comments toward an African-American student, Dorcas Alao, regarding her language and ethnicity. As discussed above, Alao found Respondent's conduct offensive. Respondent's conduct in this regard constituted misconduct in office, pursuant to rule 6A-5.056(2). Specifically, it disrupted his students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office under rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes his professional obligations to students. Specifically, in making racially insensitive and demeaning comments, he failed to make reasonable effort to protect his students from conditions harmful to their learning and to their mental health, in violation of rule 6A- 10.081(2)(a)1.; he intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5.; and he harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and demeaning comments and disrespectful conduct toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because it violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Respondent's conduct in making unsubstantiated accusations against former assistant principal Hoff constituted misconduct in office because it violated rule 6A-10.081(2)(c)5., which establishes the professional standard that an educator shall not make malicious or intentionally false statements about a colleague. Although the evidence does not establish that Respondent's accusations about Hoff were malicious—i.e., characterized by, or showing malice, intentionally harmful, or spiteful19—it is reasonable to infer that they were intentionally false, given that Hoff had not been employed at MHS for over two years when Respondent made those accusations, and that Murray had succeeded Hoff as Respondent's supervisor. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and engaging in disrespectful conduct, toward his students, Respondent also failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency as a result of inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed herein, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the School Board’s professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, 19 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). Respondent received a meeting summary for making racially insensitive comments to a male African-American student. Additionally, as discussed herein, the undersigned recommends that Respondent be suspended without pay for ten days in Case No. 19-3380, for continuing to engage in such conduct during the timeframe covered by the February Administrative Complaint. This ten-day suspension constitutes yet another disciplinary corrective action against Respondent for continuing to engage in conduct about which he repeatedly has been admonished, and has been directed to cease. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive and demeaning comments and engage in disrespectful conduct toward his students during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional20 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive, demeaning, and disrespectful comments and conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. School Board Policy 4008 – Responsibilities and Duties (Principals and Instructional Personnel) As discussed herein, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As previously discussed and further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct. The racially insensitive and demeaning comments that Respondent made to his students, repeatedly, over a substantial period of his employment with Petitioner, constitute a severe offense. The evidence establishes that his comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct and negative impacts on his students. As discussed above, Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He has previously received two verbal reprimands, two written reprimands, and a 20 See note 12, supra. five-day suspension without pay. Additionally, in Case No. 19-3380, the undersigned has recommended that Respondent be suspended for ten days without pay for engaging in conduct charged in that case. Respondent also has been subjected to numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, counting the ten-day suspension that has been recommended in Case No. 19-3380, Respondent has received approximately 15 corrective actions, six of which were disciplinary in nature, between July 2011 and March 2019. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the May Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined and issued non- disciplinary corrective actions. The evidence shows that these corrective actions have had essentially no deterrent effect on Respondent's conduct. The competent, credible evidence establishes that Petitioner has given Respondent numerous chances, through its corrective action policy, including the progressive discipline process, to change his conduct which violated, and continues to violate, DOE rules and School Board policies. The competent, credible evidence establishes that nonetheless, Respondent has continued, during the timeframe covered by the May Administrative Complaint, to engage in much of the same conduct which violates DOE rules and School Board policies, and for which he previously has received numerous disciplinary and non-disciplinary corrective actions. Petitioner has closely adhered to the progressive discipline provisions in Policy 4.9, meting out multiple verbal and written reprimands, interspersed with non-disciplinary corrective actions to Respondent, before resorting to suspending him from employment—first, for five days, then for ten days—for his persistent conduct which violated DOE rules and School Board policies. The purpose of Policy 4.9 is "to improve and/or change employees' job performance [and] conduct."21 Despite giving Respondent numerous opportunities, through disciplinary and non-disciplinary corrective actions, to change his conduct, Respondent has not done so. Given that Petitioner has closely followed the progressive discipline provisions of Policy 4.9, and the fact that Respondent has received numerous corrective actions over his period of employment with Petitioner—which have not resulted in him changing his conduct such that he does not engage in behavior which violates DOE rules and School Board policies—it is determined that, pursuant to Policy 4.9, Respondent should be terminated from his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a Final Order in Case No. 19-3380 suspending Respondent for ten days without pay, and enter a Final Order in Case No. 19-3381 terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th of May, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert W. Runcie Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
