The Issue Whether Respondent violated sections 1012.795(1)(c), (g) and (j), Florida Statutes (2010),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), as alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Ferrier holds Florida Educator’s Certificate 864022, covering the areas of educational leadership, elementary education, and middle grades integrated curriculum, which is valid through June 30, 2012. At all times pertinent to this case, Mr. Ferrier was employed as a teacher at either Pinellas Park Middle School (Pinellas Park) or Seminole Middle School (Seminole) in the Pinellas County School District (School District). Petitioner, Dr. Eric Smith, at all times pertinent to this case, is acting as the Florida Commissioner of Education, pursuant to his authority in section 1012.796(6). Mr. Ferrier began teaching at Pinellas Park in the 2006- 2007 school year. The record shows by clear and convincing evidence that Mr. Ferrier’s performance during the three school years, 2006-2007, 2007-2008, and 2008-2009, was characterized by a lack of organization, failure to effectively communicate with parents and students, failure to provide students with grades and collect school work, and discord. Ms. Gorman, an assistant principal for Pinellas Park, was Mr. Ferrier’s immediate supervisor. She evaluated Mr. Ferrier’s performance for the three years that he taught at Pinellas Park. Ms. Gorman’s first evaluation of Mr. Ferrier for the 2006-2007 school year shows that he earned a score of "1" which indicates Mr. Ferrier was satisfactory. A rating less than level "1" is deemed unsatisfactory. Further, the 2006-2007 evaluation shows that Ms. Gorman expected Mr. Ferrier to make progress in 11 out of 23 areas she assessed in the evaluation. The evaluation form contained 25 areas for assessment. Mr. Ferrier’s evaluation shows that Ms. Gorman left two assessment areas blank. For the 2007-2008 school year, Ms. Gorman rated Mr. Ferrier at a level "2" with progress expected in 10 of the 25 areas assessed. Mr. Ferrier’s 2007-2008 evaluation showed that he was satisfactory. For the 2008-2009 school year, Ms. Gorman rated Mr. Ferrier as not meeting the minimum expectations for teaching. Out of the 25 measured categories, Ms. Gorman rated Mr. Ferrier as not meeting expectation in 17 categories. Mr. Ferrier failed to meet expectations for subject knowledge; instructional method; respect for students, parents, and colleagues; engaging students; and use of technology in the classroom. Mr. Ferrier’s tenure at Pinellas Park was also characterized by repeated failures to answer calls made by parents, disorganization, poor attendance at meetings, arriving to school and classes late, and not acting as a professional in dealing with colleagues. Ms. Witcher, the Pinellas Park principal, provided credible testimony showing Mr. Ferrier’s disorganization and propensity for arriving late to school. For example, in the 2008-2009 school year, on the first day of school for returning teachers, Mr. Ferrier arrived at noon as opposed to 8:30 a.m. When asked by Ms. Witcher why he was late, Mr. Ferrier explained that he did not know that school began on that date. Mr. Ferrier’s tardiness was indicative of his behavior. Ms. Witcher clearly testified that on a "few occasions during the first and second year . . . he was so tardy, I had to go down and open the classroom door, let the kids in and wait for him." The record clearly also shows that Mr. Ferrier failed to be responsive to parent concerns about their children. Ms. Northcutt, the guidance counselor for Pinellas Park, provided credible testimony showing that Mr. Ferrier failed to return parent phone calls, failed to attend parent-teacher meetings, and, if Mr. Ferrier did attend the meeting, he was disorganized and unprepared. The frequency of parents calling Ms. Northcutt to ask Mr. Ferrier to contact them became so great that she "felt almost like a personal secretary to Mr. Ferrier," asking him to return phone calls. In addition to being unresponsive to phone calls, the record clearly shows, through Ms. Northcutt’s testimony and e-mails admitted into evidence, that Mr. Ferrier either failed to show up for parent-teacher conferences, or was late and unprepared if he did attend the conference. Parents would contact Ms. Northcutt in her capacity as the guidance counselor because the parents had concerns about Mr. Ferrier’s teaching and grading. Mr. Ferrier would routinely fail to timely enter grades of assignments into the computer system so that parents could check their child’s progress. The record clearly shows that Mr. Ferrier lacked insight into his professional shortcomings. The record clearly showed that Mr. Ferrier was offered assistance to help him become an organized and effective teacher, but failed to avail himself of the assistance. Further, Mr. Ferrier objected to Ms. Witcher’s direction that he not coach the volleyball team and concentrate on teaching. In response to this directive, Mr. Ferrier encouraged parents of the volleyball players to contact Ms. Witcher to change her decision. The record also shows that, during Mr. Ferrier’s tenure at Pinellas Park, he did not act as a professional in dealing with colleagues. This finding is based on the events concerning Mr. Ferrier’s placement on administrative leave while the School District investigated him for bullying a co-worker, and his subsequent action after returning from administrative leave. Ms. Northcutt credibly testified that, based on Mr. Ferrier’s repeated failures to either attend parent-teacher conferences or be on time for them, she began to document these actions and inform Ms. Witcher. At one parent-teacher conference, Ms. Northcutt noted that Mr. Ferrier arrived late, although the parents had not yet arrived. Mr. Ferrier told Ms. Northcutt to note that he had arrived on time, which she replied that he was still late. Two other teachers, who were to attend the conference, also arrived late. One of the teachers had permission due to a conflict, and the other teacher arrived after attending another conference. Mr. Ferrier demanded that Ms. Northcutt report the two teachers as late. Ms. Northcutt credibly testified that she felt threatened and intimidated by Mr. Ferrier’s confrontational behavior. She reported the incident to Ms. Witcher, who referred the incident to the School District, and an investigation was begun. The School District placed Mr. Ferrier on administrative leave, and Ms. Witcher informed Mr. Ferrier that he was to leave the campus quietly. As Mr. Ferrier was leaving the campus, he told everyone that he encountered that he was accused of bullying and that he would return. Ms. Witcher felt that Mr. Ferrier’s actions were divisive and sought to undermine her new administration at the school. When Mr. Ferrier returned to the school from the administrative leave, Mr. Lott, the School District’s administrator for the Office of Professional Standards, informed Mr. Ferrier to be very careful in his interactions with Ms. Northcutt. Within two days of his return, Mr. Ferrier sent all of the Pinellas Park personnel an e-mail stating that he had been wrongly accused of bullying and that he had been exonerated. Mr. Lott found this action to be inappropriate and a continuation of Mr. Ferrier’s efforts to bully Ms. Northcutt. Consequently, based on this action, Mr. Ferrier received a written reprimand and was involuntarily transferred from Pinellas Park to Seminole. The purpose of transferring Mr. Ferrier to Seminole was to provide him with a fresh start. Unfortunately, the record clearly shows that Mr. Ferrier’s short tenure at Seminole was again characterized by ineffective teaching, lack of knowledge of materials he was expected to teach, lack of communication with parents, tardiness, and failure to follow directions to become an effective teacher. Mr. Lechner, the principal at Seminole, assigned Mr. Ferrier to teach regular science classes and three advanced honor science classes. The parents at Seminole are actively involved in their children’s education. Thus, many of Mr. Ferrier’s short-comings were quickly brought to the attention of Mr. Lechner. The record shows that Mr. Lechner was pro-active in assessing Mr. Ferrier’s teaching, offering Mr. Ferrier assistance to become an effective teacher, and ultimately removing Mr. Ferrier from the classroom. The record clearly shows that Mr. Ferrier failed to carry out his duties as a teacher. Specifically, the evidence clearly showed the following instances: Mr. Ferrier was disorganized in the classroom. Mr. Ferrier’s disorganization in the classroom was apparent from the very beginning of his tenure at Seminole. During an open house for parents, Mr. Ferrier, in addressing parents of honor students, did not have a syllabus for the class, pointed out text books that he stated the class probably would not use, and discussed at length discipline issues with the parents. The record shows, however, that honor students typically did not cause discipline problems. Mr. Ferrier’s disorganization quickly led students to becoming frustrated in the classroom and parents complaining to Mr. Lechner. Further, this disorganization was reflected in Mr. Ferrier’s losing assignments, failing to properly log grades into the school computer system so that parents could access the grades, and losing test results. Mr. Ferrier’s disorganization in the classroom was further documented by Mr. Lechner, who placed Mr. Ferrier on a Professional Service Contract Probation for 90 days during the school year, beginning on September 28, 2009. Mr. Lechner conducted personal observations of Mr. Ferrier’s instruction and found it disorganized, confusing, and resulting in students becoming frustrated. Mr. Lechner gave Mr. Ferrier specific instructions on how to improve his teaching, but Mr. Ferrier failed to follow the instructions. Mr. Ferrier continued to be tardy to class and miss important faculty meetings. The record shows through Mr. Lechner’s testimony that Mr. Ferrier missed the teachers’ mandatory first professional learning community meeting. Although Mr. Lechner could not remember the reason that Mr. Ferrier gave for missing the meeting, Mr. Lechner testified that Mr. Ferrier "always had an excuse." Based on Mr. Lechner’s answer, it was clear that Mr. Ferrier made excuses for his failures, as opposed to acknowledging his mistakes. The record further showed that Mr. Ferrier’s tardiness often would extend into the day. The testimony showed that Mr. Ferrier would leave campus and return from lunch 15 minutes late, thus, delaying instruction. As a result of Mr. Ferrier’s habitual tardiness, Mr. Lechner required Mr. Ferrier to use a sign-in and sign-out log. Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach. The parents and students, who testified, were unanimous in their consensus that Mr. Ferrier failed to teach anything. Mr. Ferrier’s failure to teach resulted in one student having to "steal" one of the text books that Mr. Ferrier was not using and teach herself physical science. Further, the testimony was clear that, after Mr. Ferrier was relieved of his teaching duties, the students had to "cram" a year’s worth of science into half a school year. In essence, Mr. Ferrier cheated the students out of an education. The conclusion that Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach is supported by the testimony of Ms. Lamy and Mr. Lechner. The record clearly showed that Mr. Ferrier used "bell work" for a significant period of the teaching time. "Bell work" was defined as work given to students for the first few minutes of class to engage them immediately. Ms. Lamy, who was the School District’s supervisor for secondary science, conducted an in-classroom observation of Mr. Ferrier’s teaching at Seminole. Ms. Lamy noted that Mr. Ferrier used "bell work" for almost the entire class time. As a result, Mr. Ferrier did not teach. Further, Ms. Lamy observed that Mr. Ferrier did not have control of his class and did not have an adequate lesson plan. Based on her observations, Ms. Lamy made recommendations for Mr. Ferrier on handling the classroom and preparing lesson plans. Unfortunately, the record shows that Mr. Ferrier did not take full advantage of the help being offered to him. Mr. Lechner’s testimony also provided examples from classroom observations that demonstrated Mr. Ferrier’s poor instructional methods and lack of understanding of the material he was supposed to teach. For example, Mr. Lechner described a laboratory experiment conducted by Mr. Ferrier. Mr. Ferrier attempted to conduct an experiment demonstrating how an object could change physical states by melting a candy bar. During the experiment, Mr. Ferrier did not use safety gloves when attempting to melt the chocolate bar. Because the chocolate bar did not melt quickly, Mr. Ferrier left the experiment and never came back to it or the concept behind the experiment. According to Mr. Lechner, Mr. Ferrier modeled poor safety for the students by not using safety gloves and leaving the flame on the candy bar while he moved to another subject, and Mr. Ferrier did not teach the concept behind the experiment. The record showed that Mr. Ferrier would use ineffective methods to teach, such as relying on videos. In one instance, Mr. Ferrier used videos of Michael Jackson and throwing a wadded-up piece of paper in order to demonstrate motion. Finally, in December 2009, during an observation, Mr. Lechner observed Mr. Ferrier teach the students a wrong formula concerning distance over time, which was not corrected until the error was pointed out by a student. Mr. Ferrier did not manage work assignments and tests and failed to properly record grades. The record shows that students would turn in work, but the work would not be graded or posted into the school’s computer system so that parents and students could access the information. Further, parents and students complained to Mr. Lechner about erroneous grades, missing grades or assignments, or no grades for tests that had been completed, as well as grades which were either excessively high or excessively low. Mr. Ferrier failed to respond to parental inquiries and was unprepared and untimely when attending parent-teacher meetings. One parent testified about attending a parent-teacher conference, with Mr. Lechner, where Mr. Ferrier failed to show up. Mr. Ferrier’s disorganization resulted in him failing to turn students’ answer sheets for mandatory progress monitoring tests into the district office. As Ms. Lamy explained, the state required school districts to turn in students’ answer sheets from the test to the Department by December 15, 2010. When the School District started receiving feedback from the tests, Ms. Lamy learned that Mr. Ferrier had not turned in the answer sheets. Subsequently, Mr. Ferrier turned in the answer sheets on or near January 6, 2011. Based on Mr. Ferrier’s actions, the School District was not in compliance with the state-ordered mandate. On January 19, 2011, after the 90-day probation period, Mr. Lechner evaluated Mr. Ferrier as not meeting the minimum expectations for teaching. Mr. Ferrier did not meet expectations in 23 of 25 categories, including the areas of subject knowledge, instructional methods, respect for students and parents, engaging students, use of technology, classroom discipline, and organization. Further, Mr. Lechner noted, based on his observations, that Mr. Ferrier continued to be disorganized, his directions were not clear, he was causing confusion, and he was returning papers to students without feedback. The record shows that well into the 90-day probation Mr. Ferrier finally sought assistance, at the insistence of Mr. Lechner, from the Professional Development and Improvement Network to help him become a better teacher. Unfortunately, the record shows that Mr. Ferrier’s teaching ability did not improve and that he continued with many of the same problems that he had at Pinellas Park. The record shows that Mr. Ferrier has no prior disciplinary history with the Florida Education Practices Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Ferrier violated sections 1012.795(1)(c), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and that Mr. Ferrier’s educator’s certificate be revoked for two years followed by a period of three years’ probation under terms and conditions deemed appropriate. DONE AND ENTERED this 9th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2012.
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 18th day of August, 2017.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2014.
The Issue Whether a discriminatory housing practice occurred against Petitioner by Citrus Health Network Inc., and Jose Garcia.
Findings Of Fact Lomax is a black female who lived at 125 Northwest 15th Street, Lower Level, Miami, Florida ("old residence"). Lomax's disability income is $1,291.99 monthly. From January 2011 to September 2011, Lomax did not pay any rent at her old residence, even though there was no interruption in her income. Lomax was going to be evicted because the building was in foreclosure and had been neglected by the property owner. The Housing Assistance Network of Dade ("HAND") is a program that helps prevent people from becoming homeless. The program is funded by a grant from the U.S. Department of Housing and Urban Development. The grant is awarded to the City of Miami who subcontracts with Citrus to operate the HAND program. On or about August 11, 2011, Lomax sought financial assistance for housing by applying to the HAND program for first and last month rent. Lomax was assigned a case manager, Robert Butler ("Butler"), to process her application. During the application process, Lomax tried to talk to and meet with HAND program administrators about her application instead of working with her case manager. Lomax was able to speak to Maria Bringas ("Bringas"), the Citrus Health Service Coordinator for the HAND Program. Lomax did not like Bringas' demeanor and requested that she speak to her supervisor Jose Garcia ("Garcia"). Lomax talked to Garcia afterwards. Even though Butler was processing Lomax's application, Lomax called Citrus numerous times and felt she should have had more communication with the administration during the process. The HAND program does not have a working site. It is community based and set up whereby applicants work with case managers in the field. The level of assistance provided to participants is based on the income level. The HAND program evaluated Lomax and determined that she was qualified to be approved for the program. Lomax found new rental accommodations from James and Valarie Errol. On or about September 2, 2011, Citrus sent Alberto Abella ("Abella") to inspect Lomax's prospective rental unit for habitability and determined the property was above standards. Abella provided his report, a HUD requirement, to Citrus as part of Lomax's application process. Citrus processed Lomax application expeditiously in less than 10 days and helped Lomax obtain new housing at 212 Northwest 15th Street, Miami, Florida 33136, ("new home") by approving her application and providing her first month's rent so that she could move into the new residence upon eviction and never be homeless. Lomax was transitioned straight from the eviction of the old residence to a stable housing situation with Citrus' assistance of first month's rent for her new home. Lomax was not satisfied with the level of assistance that she received from the HAND program and appealed to receive the last month's rent she had originally requested. As a result of Lomax's first appeal, Citrus denied her request but had its attorney call Lomax's new landlord and negotiated a plan for Lomax to pay her rent for the last month in installments instead of all upfront. Lomax still was not satisfied with her level of assistance and filed a second grievance to the funder, the City of Miami, for more funding. The city denied her request after determining she had not lost any income prior to her eviction. Lomax protested the denial, alleging she had been financially caring for the property where she had been residing by paying the maintenance services like plumbing and lawn care, and that is why she didn't have the savings from her monthly income where she had not paid rent. The City of Miami agreed to reconsider Lomax's appeal for more assistance and requested she provide maintenance receipts to document her maintenance payments. The City of Miami reviewed the receipts Lomax provided and determined Lomax did not provide the right receipts for the City of Miami to provide additional funding to her. It was determined that Lomax did not demonstrate that she lacked financial resources needed to pay her last month's rent. Therefore, the City of Miami denied her grievance appeal. Lomax filed a discrimination case against Citrus with the Commission because she believes that the reason she was not provided last month's rental assistance was because of her race and sex. Lomax felt that Citrus' administration was racist, hateful and offensive, and the administrators did not return her calls during the application process. From October 1, 2010, to October 1, 2011, Citrus provided financial assistance to 1,146 individuals without regard to race, sex, or ethnicity. African Americans make up 576 (51 percent) of the persons served. Hispanic/Latinos make up 554 (49 percent) of the persons served. Females make up 64 percent of the total adults served. A majority of the individuals served have a lower income than the Petitioner. At the time of the hearing, Lomax still resided in her new home she obtained with the financial assistance of first month's rent from the HAND program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief filed by Mattie Lomax in its entirety. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Lawrence F. Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Olga Maria Golik, Esquire Citrus Health Network, Inc. 4175 West 20th Avenue, Third Floor Hialeah, Florida 33012 olgag@citrushealth.com Mattie Lomax Apartment Number 1 212 Northwest 15th Street Miami, Florida 33136
The Issue Whether Respondent should be terminated from her employment with the Seminole County School Board.
Findings Of Fact Mack has been employed by the School Board for six years. During the 2001-2002 school year, Mack was a school lunch assistant assigned to Seminole High School. Her immediate supervisor was John Caldwell (Caldwell). Mack received satisfactory evaluations of her work for Petitioner until April 2002, when she received an evaluation from Caldwell criticizing her in several areas. On April 12, 2002, a Friday, Mack was upset about her evaluation, showed her evaluation to fellow workers and loudly complained about her evaluation. She was becoming disruptive to the cafeteria operations. Caldwell called Mack into his office to discuss her behavior. She became loud, and Caldwell had to call the Assistant Principal. Mack was sent home. Caldwell did not tell her not to come back, and, at that time, did not tell her that he was going to recommend that she be terminated. On Monday, April 15, 2002, Mack called her workplace and said that she was sick and was going to the emergency room. On April 16, 2002, Mack called in and spoke to Janelle Harris (Harris), who was Caldwell's assistant. Mack told Harris that she had the flu and would not be coming to work. The policy for a food service worker at Seminole High School who was going to be absent from work because of sickness was that the worker was to call either Caldwell or Harris and notify them of the absence. The telephone in Caldwell's office has voice mail capabilities; thus, if Caldwell or Harris were not in the office, the sick employee was to leave a message on the voice mail. Caldwell and Harris were the only two persons who had access to the code to retrieve messages from the voice mail. On April 17, 2002, Mack was absent from work, but did not call in and give an explanation for her absence. Mack continued to be absent from work without calling in. On April 26, 2002, Mack came to the school office and picked up her paycheck. She did not go to the cafeteria and tell Caldwell or Harris why she had not been at work. Learning that Mack had gone to the school to pick up her check, Caldwell called Mack at her home. Mack told Caldwell that she had called in and left a voice mail. No messages were left on the voice mail by Mack between April 17 and April 26. Caldwell explained to Mack that she was required to call in unless she was in the hospital or could not talk. Daniel Andrews (Andrews), the Director of Food Services, prepared a letter to be sent to Mack under Caldwell's signature. The letter, dated May 2, 2002, advised Mack that she had continued to be absent without calling in to notify Caldwell of her absence and to provide a reason for the absence. The letter further advised her that three days of absence without leave required a penalty of termination. Mack was requested to contact Caldwell by noon on May 7, 2002, or the case would be referred to Andrews. Mack did not receive the letter until May 8, 2002; however, she never contacted Caldwell concerning the letter. By letter dated May 10, 2002, Andrews advised Mack that because of her continued absences without leave and her failure to provide justification for her absences that he would be requesting that her termination be recommended to the School Board. Mack received this letter on May 18, 2002. By letter dated May 20, 2002, Paul Hagerty, Superintendent of Public Schools for the School District of Seminole County, Florida, advised Mack that he would be appearing before the School Board on May 28, 2002, and recommending that she be suspended without pay. He further advised her that at the June 11, 2002, School Board meeting he would file a recommendation that her employment be terminated effective June 12, 2002. Mack contacted Andrews by telephone and left a voice mail. On May 21, 2002, Andrews returned her call, and Mack told him that she had gotten the voice mail when she tried to call Caldwell but did not leave any messages. Andrews would have accepted a reasonable explanation from Mack for her absences when she talked to him on May 21, but she did not provide any plausible reason for not notifying Caldwell of her absences nor did she ever provide any documentation from a doctor that she had been ill during her absences. Mack told Andrews that she did not care if her employment was terminated. By letter dated May 25, 2002, Mack requested a hearing on the decision to terminate her employment. Mack did not request a hearing concerning the recommendation for her suspension. On May 28, 2002, the School Board suspended Mack, effective May 29, 2002. Mack had a job at a local barbeque restaurant during the evening hours. While she was absent from her job at Seminole High School, she continued to work at the barbeque restaurant. The Non-Instructional Personnel of Seminole County Board of Public Instruction, Inc., and the School Board have entered into a collective bargaining agreement, effective July 1, 1997, through June 30, 2002, covering the wages, hours, and the terms and conditions of employment of the public employees within the bargaining unit. The collective bargaining agreement applies to Mack's employment with the School Board. Article VII, Sections 5, 11, and 15 of the collective bargaining agreement provide: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: * * * 10. Improper use of sick leave. Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. Section 15 Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommend for termination. The School Board interprets the collective bargaining agreement to mean that each day an employee is absent without leave is a separate offense. At no time did the School Board issue Mack a written reprimand, one-day suspension, or a five- day suspension prior to her termination, as set forth in Section 15 of the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dorothy Mack was absent without leave, suspending her for one day, and issuing a reprimand. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 10th day of April, 2003. COPIES FURNISHED: Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jim Horne Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
