The Issue The issue to be determined in this proceeding is whether Respondent is entitled to back pay following reinstatement to employment after suspension without pay.
Findings Of Fact At the final hearing, the parties stipulated to adopting the Findings of Fact from DOAH Case No. 17-4220, which are incorporated herein as follows: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.” Additional Findings of Fact While DOAH Case No. 17-4220 addressed the issue of whether the School Board had authority to suspend Mr. Warren without pay until final resolution of the criminal charge alleging a violation of section 812.014(2)(b)1., Florida Statutes, the issue of reinstatement and back pay were not at issue in that case. There was no evidence offered at hearing that the School Board offered Mr. Warren the opportunity to work in a location that does not have direct contact with students until the charges were resolved. Nearly five months after the Final Order was entered in DOAH Case No. 17-4220, the criminal charges, which served as the basis for Mr. Warren’s suspension without pay, were dismissed. As a result, the School Board reinstated Mr. Warren to his same position as a custodial worker, effective November 17, 2017. The School Board denied Mr. Warren back pay for the period he was suspended without pay. The School Board relied on its Rules and Procedure rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for the pending criminal charge. Rule 2.04 provides that “a record clear of disqualifying offenses as defined in section A . . . is required for employment or continued employment.” However, rule 2.04 fails to address the method of reinstatement or the condition upon which an employee would receive back pay if criminal allegations related to a potentially disqualifying offense were resolved favorably for the employee. The School Board has refused to award back pay to Mr. Warren on the basis that his criminal charges resulted from actions outside the scope of his employment. There is no written policy in rule 2.04 or otherwise that an existing employee who is suspended without pay for conduct that occurred outside the scope of his or her work environment is not entitled to back pay upon reinstatement. It is simply general practice. The assistant superintendent of human resources for the School District (Dr. Scott) and the general counsel (Ms. Waters) testified regarding the policy of not awarding back pay to reinstated employees after suspension without pay. Dr. Scott, who has served as the assistant superintendent of human resources for the School District since 2005, testified that “[g]enerally, if an employee is suspended without pay based on criminal charges or investigation of misconduct but in the scope of the employee’s position . . . and the employee is subsequently exonerated and reinstated, back pay will be awarded.” By contrast, “if an employee is suspended without pay pending criminal charges and/or investigation, potentially, unlawful conduct unrelated to the employee’s performance of their duties in his or employment, in the event the employee is reinstated, back pay is generally not award[ed].” Dr. Scott also testified that the District’s practice “can be a substitute” for a properly adopted rule. He acknowledged that the policy has not been approved by the School Board. Moreover, he acknowledged that the policy is not based on any adopted rule. Ms. Waters also testified about the policy of not awarding back pay. She testified that she “was not able to answer the question in the abstract” regarding whether the policy was generally applicable. She stated that it would be “a fact kind of question.” In this case, Mr. Warren was deprived of wages that he would have earned but for the suspension without pay for criminal charges that were later dismissed. There was much discussion at hearing regarding whether the School Board’s action of suspending Mr. Warren without pay should be considered discipline. Ms. Spika testified that the action of suspending Mr. Warren without pay is considered disciplinary action. Discipline is defined in the Collective Bargaining Agreement (“CBA”) as including suspension without pay. Discipline is also defined as corrective action to improve behavior. Here, the School Board did not consider Mr. Warren’s suspension without pay as disciplinary action as it was not intended to correct his work performance or work place conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that to the extent there is authority to do so, Mr. Warren should be reinstated and awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 16th day of May, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of May, 2019.
The Issue The issues are whether Petitioner has just cause, within the meaning of Subsection 1012.33(1)(a), Florida Statutes (2007),1 to terminate Respondent’s professional service contract as an instructional employee, and, if so, whether termination of the contract is reasonable under the facts and circumstances of this case.
Findings Of Fact Petitioner employed Respondent as a classroom teacher from some time in 1998 until September 8, 2009, pursuant to a professional service contract. Petitioner relieved Respondent from the duties of her employment without pay on September 8, 2009. On September 21, 2009, Petitioner filed an Administrative Complaint against Respondent. Most of the material facts in the Administrative Complaint are undisputed. On December 12, 1999, Respondent was arrested for cocaine possession, a third-degree felony, and narcotic equipment possession, a first-degree misdemeanor. Respondent successfully completed a pretrial diversion program, and the charges were nolle prossed and expunged. Respondent did not report the criminal matter to Petitioner. The failure to report the criminal matter violated the self-reporting requirements in Management Directive A-10, Guidelines on Self-Reporting of Arrest and Convictions by Employees (the self-reporting requirements). On July 10, 2000, Respondent was arrested for driving under the influence (DUI), which was a first conviction. Respondent pled nolo contendere to a reduced charge of reckless driving and entered and successfully completed a pretrial diversion program. Respondent did not report the DUI matter to Petitioner. The failure to report the DUI matter violated applicable self- reporting requirements. On June 18, 2002, Respondent was arrested on a misdemeanor battery charge. The alleged victim dropped the charge, but Respondent did not report the incident to Petitioner in violation of the applicable self-reporting requirements. On July 6, 2006, Respondent violated Petitioner's Drug Free Workplace Policy by reporting to work at Rolling Hills Elementary School under the influence of alcohol. On July 9, 2006, Respondent entered into an agreement with Petitioner identified in the record as a Last Chance Agreement. The Last Chance Agreement was in effect for the 2006- 2007 and 2007-2008 school years. The Last Chance Agreement provides, in relevant part, that if justifiable grounds of discipline, rising to the level of a written reprimand or dismissal, occur during the school year, Respondent shall forfeit her right to be employed by Petitioner, and the Last Chance Agreement shall constitute a voluntary resignation from employment. The 2007-2008 school year ended on June 6, 2008. On May 30, 2008, Respondent failed to disclose on the renewal application for her Florida Educator's Certificate the expunged criminal record, pretrial diversion program, and plea of nolo contendere previously discussed. Respondent checked "no" to the following question: Have you ever had any record sealed or expunged in which you were convicted, found guilty, had adjudication withheld, entered a pretrial diversion program or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is not a minor traffic violation)? On March 20, 2009, the Education Practices Commission imposed several penalties against Respondent's teaching certificate for the violations that occurred during the 2007- 2008 school year. The Commission issued a written reprimand, imposed administrative fines in undisclosed amounts, and placed Respondent on two years’ probation. The disputed issue is whether Respondent's failure to disclose her criminal history on the renewal application for her Florida Educator's Certificate was intentional. Respondent claims the failure was not intentional, but was induced by post- traumatic stress syndrome (PTSS) caused by two statutory rapes that occurred when Respondent was 13 and 15 years old. When Respondent was 13 years old, a man who was approximately 33 years old "took her virginity." Respondent had an abortion, experienced a great deal of shame and guilt, and began self-medicating with alcohol and drugs. When Respondent was 15 years old, one of Respondent's high school teachers molested her. Respondent again experienced guilt and shame, did not disclose the incident, and continued using alcohol and drugs. Respondent presented expert testimony concerning the effects of PTSS. The expert testimony concludes that PTSS could have caused Respondent to drink excessively and fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. However, the expert testimony fell short of concluding that PTSS in fact induced Respondent to fail to disclose the criminal history on her application. Respondent's own testimony is that she had five or six glasses of wine the night she completed the application. Respondent completed the application without giving it much thought. On balance, a preponderance of the evidence does not support a finding that PTSS caused Respondent to fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. Several mitigating facts support a penalty less than termination of the professional service contract. The non- disclosure of facts was a harmless error to Petitioner. Petitioner had actual prior knowledge of all of the facts that Petitioner complains Respondent omitted from the application. The state licensing authority has knowledge of the non-disclosed facts. Respondent has already been disciplined for non-disclosure to the state licensing authority. When the Last Chance Agreement was entered into in 2006, Respondent was incorrectly diagnosed and treated for bipolar disorder. The treatment for bipolar disorder was ineffective during the term of the Last Chance Agreement. Respondent has been alcohol-free since September 2008, when she placed herself in a residential alcohol treatment program in Clearwater, Florida. Beginning in the early part of 2010, Respondent has been correctly diagnosed and treated for PTSS by Joseph L. Trim, Ed.D, a licensed mental health counselor and addiction specialist. That diagnosis and treatment appears to be effective for Respondent. Based on the testimony of the school principal who testified for Respondent, Respondent is an experienced and competent teacher who has not lost her effectiveness in the classroom. For each school year from 1998-1999 through 2004- 2005, Petitioner evaluated Respondent as effective in the classroom. Respondent has already received a reasonable penalty for violating the Last Chance Agreement, when Respondent was improperly diagnosed and treated for bipolar disorder. Petitioner has suspended Respondent from her employment without pay from September 8, 2009, to the present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order reinstating Respondent's employment with her current principal, requiring Respondent to continue her current therapy with Dr. Trim, requiring Respondent to submit to random drug screening, and extending the term of the Last Chance Agreement for another two years. DONE AND ENTERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of July, 2010.
The Issue Petitioner seeks to terminate Respondent's employment based on several alleged criminal convictions. The issue is whether termination is appropriate under pertinent statutes and the parties' Collective Bargaining Agreement.
Findings Of Fact Respondent, Anthony Collier, has been employed by the Seminole County School Board for the last twelve years. He works as a maintenance helper, assisting and supporting skilled members of general maintenance teams, also called "SWAT" teams. Each of the six school board SWAT teams is assigned to a division or zone, with 10 to 15 schools in each zone. The work day is 7:00 a.m. to 3:30 p.m., the same hours as a school day. Mr. Collier changes ceiling tiles, lights, electrical ballasts, locks, and carpeting. He sometimes works independently and frequently works in classrooms or other areas occupied by students. He is described as a good worker by his supervisors and in recent years he has received high performance evaluations. Approximately 12 years ago the school boards were mandated by the Florida Legislature to conduct fingerprinting and background screening of all new instructional and administrative personnel. In 1996 the school boards began the screening of existing employees and in the subsequent year included all non- instructional employees. As a result of the routine screening of Mr. Collier, several arrest records were disclosed. Three of those arrests were prosecuted to a final disposition. On February 19, 1991, in Case No. 90-2172CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to a reduced violation of assault, after having been charged with aggravated assault. He was sentenced to community service. On February 23, 1995, in Case No. 94-3344CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to trespassing, after having been charged with burglary of a dwelling and petit theft. He was again adjudicated and sentenced. On September 27, 1997, in Case No. 97-1589CFA, in the Circuit Court for Seminole County, Anthony Collier pled no contest to 5 counts of burglary of a conveyance and 5 counts of petit theft. He was adjudicated guilty of the 5 counts of petit theft and adjudication was withheld in the 5 counts of burglary of a conveyance. For the latter disposition, Anthony Collier was placed on community control with a special condition that he serve 25 alternative weekends at the John E. Polk Correctional Facility, followed by 3 years' probation. On December 17, 1998, Anthony Collier was charged with violating his conditions of probation by committing domestic violence and by resisting and fleeing arrest. Nothing in the record of this proceeding reveals the outcome of the violation of the probation charge. Burglary of a conveyance is a felony violation; all of the other violations for which Mr. Collier was ultimately adjudicated were misdemeanors. There are some memoranda or correspondence in Mr. Collier's personnel file that reflect school board staff were aware of some of Mr. Collier's criminal charges, but nothing specifically refers to the final disposition of the charges. He was not informed of the recommendation for his termination until after the fingerprinting and background screening described above. The Collective Bargaining Agreement covering non- instructional personnel of the school board provides in pertinent part: DISCIPLINE AND TERMINATION Section 5. Regular employees who have been hired for a minimum of three(3) continuance years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the state of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the district, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. There are no positions in the maintenance department for helpers or laborers that do not require work at the schools.
Recommendation Based on the foregoing, it is RECOMMENDED that the Seminole County School Board enter a final order terminating the employment of Anthony Collier. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 23rd day of July, 1999. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board Educational Support Center 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ronald G. Meyer, Esquire Meyer and Brooks, P.a. Post Office Box 1547 Tallahassee, Florida 32302-1547 Dr. Paul J. Hagerty Superintendent of Schools Seminole County School Board Education Support Center 400 East Lake Mary Boulevard Sanford, Florida 32773 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent, Daniel Presmy, committed the violations alleged in a five-count Administrative Complaint issued by Petitioner, Dr. Eric J. Smith, as Commissioner of Education, on March 30, 2009, and, if so, what disciplinary action should be taken against his Florida educator’s certificate.
Findings Of Fact The following findings of fact were alleged in the Administrative Complaint and stipulated to by the parties: The Respondent holds Florida Educator’s Certificate 850876, covering the area of Elementary Education, which was valid through June 30, 2008. At all times pertinent hereto, the Respondent was employed as a Third Grade Teacher at Roosevelt elementary School in the Palm Beach County School District. On or about December 11, 2006, Respondent struck D.H., a twelve-year-old male student, against the will of D.H. On or about July 30, 2007, Respondent pled and the court adjudicated him guilty of one count of Battery in violation of Florida Statutes Section 784.03. Conviction of Battery in violation of Florida Statutes Section 784.03 when the victim is a minor now disqualifies an individual from holding an Educator’s Certificate under Section 1012.315 of the Florida Statutes. The following findings of fact were made in the School Board Decision: Daniel Presmy (hereinafter "Presmy" or "Respondent") has been a teacher for six years with Palm Beach County School Board (hereinafter "School Board"). He has always taught elementary students. Presmy has had no prior disciplinary action taken against him by the Superintendent of Palm Beach County School Board or the School Board. Presmy was a certified teacher in the School Board of Palm Beach County. On December 11, 2006, while in his classroom Presmy was teaching his third- grade class, and three students who were not students in his classroom showed up and disrupted the class. Presmy requested that the students leave his room. The students did not leave upon the initial request. One student informed Presmy that a student in the class had his eraser. Presmy then asked his class who had the eraser. Subsequently, an eraser flew to the front of the classroom and fell on the floor. Presmy picked up the eraser and handed the eraser to the student who had requested it. Presmy turned back to his class and was hit on the temple with the eraser. Presmy turned back around toward the student who he had given the eraser to and the student raised his hand. Again, Presmy told the student to leave. The student continued to stand in the middle of the doorway to Presmy's classroom and would not leave. While Presmy remained in his classroom, he used his fingertips to push the student's head and told the student (hereinafter "student victim") to "leave and don't come back here." Presmy "didn't think that [he] was doing anything wrong by telling him to leave with a gesture to leave." Presmy's reaction of touching the student was inappropriate. However, no evidence was demonstrated that the student was hurt during the incident. Presmy did not press the buzzer or contact and ask for any assistance regarding the incident because he didn't think it was necessary. On December 11, 2006, Officer Price was paged regarding the incident and she returned the call. She was informed that a student reported that he had been hit by a teacher at Roosevelt. Price interviewed the student victim and witnesses regarding the incident with Presmy. The School Board initiated an investigation into the incident. During the investigation, Respondent met with Detective Walton. Presmy told the investigator that he pushed the student victim in the head and told him to leave. [Endnote omitted]. The investigator concluded his investigation and presented the case to the State Attorney’s Office for review. As a result, Daniel Presmy was criminally charged with Battery as a violation of Florida Statutes. On August 2, 2007, Presmy pled guilty to the battery charge as a negotiated plea agreement so as not to put himself and his family through a lengthy trial and under the advice of his lawyer. His sentence was 45 hours community service, 12 weeks of anger management, 12 months of probation with early termination after six months and a $595 court fee. Petitioner alleges Respondent, by his conduct, violated School Board Policies 0.01, 1.013 and 3.12, and State Board of Education Rules 6B-1.001 and 6B-1.006. Subsequently, the School Board of West Palm Beach County at a meeting on October 24, 2007, voted to suspend Presmy without pay effective October 25, 2007, and initiated dismissal proceedings. Although included as a Conclusion of Law in the School Board Decision, the following fact was also found in the School Board Decision: “There is no evidence that Presmy's physical contact with the student in any way impaired his effectiveness in the school system.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission: Finding that Daniel Presmy violated Sections 1012.795(1)(e) and (i), Florida Statutes (2007), and Section 1012.795(1)(n), Florida Statutes (2008-2009), as alleged in Counts 1, 3/5, and 4 of the Administrative Complaint, as amended; Dismissing Count 2 of the Administrative Complaint, as amended; and Permanently revoking Mr. Presmy’s educator’s certificate. DONE AND ENTERED this 19th of May, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of November, 2011.
The Issue The issues to be determined are whether Respondent violated section 1012.315, Florida Statutes; Florida Administrative Code Rules 6A-5.056 and 6A-10.081(1) through (5); and School Board Policies 6.30(2), (3)(b), and 6.301(2), as alleged in the Statement of Charges and Petition for Termination (Petition); and, if so, what penalty should be imposed for these violations.
Findings Of Fact Petitioner, the School Board, is the constitutional entity authorized to operate, control, and supervise the St. Lucie County School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent was employed by the School Board as a teacher at Fort Pierce Westwood High School. He worked for the School Board since at least September 2007, albeit originally at a different school. Respondent signed a professional services contract with the School Board on or about February 12, 2010. He is covered by the collective bargaining agreement between the School Board and the St. Lucie County Classroom Teachers’ Association (CBA), as stated in Article I, section A of the CBA. On October 28, 2011, Respondent was advised of a meeting to take place on November 1, 2011, regarding a School Board investigation into alleged inappropriate contact with students. There is no indication in the record whether Respondent attended the meeting or gave any information. There is also no indication whether the investigation referenced in the October 28, 2011, letter is the same investigation giving rise to these proceedings. On March 3, 2014, Maurice Bonner, the Director of Personnel for the School Board, provided to Respondent a Notice of Investigation and Temporary Duty Assignment (Notice). The Notice advised that Respondent was being investigated regarding allegations of inappropriate contact with students, and that he was being placed on temporary duty assignment as assigned by the Personnel Office. Respondent signed the letter acknowledging its receipt on March 14, 2014. On April 1, 2014, Genelle Zoratti Yost, Superintendent of the School Board, wrote to Respondent with a reference line entitled Notice of Intent to Terminate Employment. The letter states, in pertinent part: On March 21, 2014 you were arrested for violating Section 800.04(6)(a)(b), Florida Statutes, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”[1/] Pursuant to the Arrest Warrant issued on March 21, 2014 you are not to be within 100 feet of Fort Pierce Westwood High School or Harbor Branch. As a result, you are unavailable to work on campus so your temporary duty assignment outlined in the notice of Temporary Duty Assignment provided to you on March 3, 2014 shall remain in full force and effect until further notice. Furthermore, you have not reported your arrest to the Superintendent within 48 hours as required. . . . Based on the information available to the School District there is sufficient information to charge you with violating the following [list of State Board of Education rule violations and School Board Policy violations]. . . . The April 1, 2014, letter notified Respondent that the superintendent would be recommending to the School Board that it terminate his employment, and provided him with notice of how he could request a hearing on the proposed termination. The letter also advised that, should he seek a hearing, the superintendent would recommend that he be suspended without pay pending the outcome of the hearing. Respondent signed the letter acknowledging receipt of it on April 3, 2014. Respondent requested a hearing with respect to his termination and was notified by letter dated April 23, 2014, that he was suspended without pay. Respondent’s request for hearing was forwarded to the Division, and the case was docketed as Case No. 14-1978. Because of the pendency of the criminal proceedings against Respondent, at the request of the parties, on September 30, 2014, Administrative Law Judge Darren Schwartz entered an Order Closing File and Relinquishing Jurisdiction, which closed the file with leave to re-open. On a date that is not substantiated in this record,2/ Respondent was tried by jury and convicted of seven counts of lewd or lascivious conduct in violation of section 800.04(6)(a) and (b) and nine counts of lewd and lascivious molestation in violation of section 800.04(5)(c)2. All 16 counts were second- degree felonies. On July 29, 2016, counsel for the School Board wrote to then-counsel for Respondent, advising him that in light of the jury verdict, notice was being given that on August 9, 2016, the superintendent would be recommending Respondent’s termination from employment. The letter also provided Respondent notice of his rights to a hearing in accordance with section 1012.33(6)(a). Counsel for Respondent notified the superintendent that Respondent continued to request a hearing in accordance with the CBA. On October 31, 2016, a Judgment and Sentence was entered in the case of State of Florida v. Dan Allen Hussan, Case No. 562014CF000857A (19th Judicial Circuit in and for St. Lucie County), adjudicating Respondent guilty of all 16 counts. Respondent was sentenced to 15 concurrent sentences of life in prison, with credit for 103 days served prior to sentencing. With respect to Count XVI, Respondent was sentenced to 15 years of sexual offender probation, consecutive to the sentence set forth in Count I. On November 7, 2016, Judge James McCann entered, nunc pro tunc to October 31, 2016, an Order of Sex Offender Probation with respect to Count XVI. The Order of Sex Offender Probation adjudicated Respondent guilty and set the terms for sexual offender probation following the life sentence. Respondent remains incarcerated. He also maintains that he is not guilty of the underlying charges. Petitioner contends that Respondent did not self-report his arrest as required by School Board policy. However, no competent, substantial evidence was presented to demonstrate Respondent’s failure to report. While a notice provided to him regarding this allegation was admitted into evidence, the accusation, standing alone, does not amount to evidence that the accusation is true.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order terminating Respondent’s employment based on a finding of just cause. DONE AND ENTERED this 25th day of April, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 25th day of April, 2017.
Findings Of Fact The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant. Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions". The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay. DONE and ENTERED this 7th day of July, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Jesse McCrary, Esquire 3050 Biscayne Blvd., Suite 300 Miami, Florida 33137 Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education The Knott Building Tallahassee, Florida 32301
