The Issue The issues in this proceeding are whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j), Florida Statutes and Florida Administrative Code Rule 6A-10.081(2)(c)1. and 8., alleged in the Administrative Complaint and, if so, what is the appropriate sanction for those violations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent, Ivonne Ortiz, holds Florida Educator’s Certificate 1258585, covering the areas of Pre-kindergarten/Primary Education, which is valid through June 30, 2022. At the time of the allegations in the Administrative Complaint, Ms. Ortiz was employed as a third-grade teacher by KIPP, a charter school organization in Duval County. She was assigned to KIPP Voice, one of three academies operated by KIPP. Ms. Ortiz was employed at KIPP Voice from July 18, 2016, through November 8, 2018. When a KIPP employee is injured on the job, the employee must notify his or her manager and complete an Employee Accident Report form. The form is an official KIPP document used to assist management and their insurance carrier in determining eligibility for workers’ compensation benefits. On October 24, 2018, Ms. Ortiz reported to Assistant School Leader Brittany Brooks that she was injured when a student “rammed” into her, and that she needed to see a doctor. Ms. Brooks asked Ms. Ortiz to complete an Employee Accident Report detailing the incident. The report would be forwarded to KIPP’s Human Resources Department (“HR”) for further consideration. In the Employee Accident Report that she completed on October 24, 2018, Ms. Ortiz wrote that “[Student M.S.] was throwing a tantrum. He ran down the stairs and rammed into me to push me out of his way. He then took a snack from the bin and slammed it on the floor. I am in intense pain right now.” Ms. Ortiz told Ms. Brooks that she was in a lot of pain due to the interaction with the student and needed to see a doctor. After her discussion with Ms. Brooks, Ms. Ortiz left school for the day. After receiving the written report from, and discussing the incident with Ms. Ortiz, Ms. Brooks informed Dean of School Operations Jessica Brown about the incident as reported by Ms. Ortiz. Ms. Brooks advised Ms. Brown that the student would have to be suspended for injuring a teacher. Ms. Brown informed Ms. Brooks that she was a witness to the incident and that it did not happen as Ms. Ortiz reported. On October 25, 2018, Ms. Brown submitted a written statement about the incident. In her statement, Ms. Brown wrote that Ms. Ortiz came down the stairs carrying a large black crate. M.S. came down the stairs behind her. M.S. was visibly upset. Ms. Brown took M.S. aside and learned that he was upset because Ms. Ortiz would not unlock the classroom to let him retrieve his backpack and homework. M.S. had been in in-school suspension all day and wanted to get his things so his mother would not be upset with him. Ms. Brown took M.S. upstairs to get his backpack. Ms. Brown wrote, “I was shocked when Brooks came to me because Ortiz never made contact with the student [M.S.]. [M.S.] never hit her and never touch her [sic] he was just upset that Ortiz would not allow him to get his backpack so that he could do his homework.” Due to the discrepancy in the accounts of Ms. Ortiz and Ms. Brown, Ms. Brooks asked Campus Manager Leighton Roye to pull video footage of the incident from the school surveillance camera. Due to the technical limitations of the school’s surveillance system, Mr. Roye was forced to record the footage with his cell phone and forward that recording to Ms. Brooks. The silent video footage was entered into evidence in two parts. The first part was an eight second clip that shows Ms. Ortiz carrying a wheeled crate down the stairs near the building entrance. At the bottom of the stairs, she stopped and sat the crate on the ground. A table faced the stairs. On the table was a crate containing snacks. As students passed between the stairs and the table on their way out of the building, they could pick up a snack. Ms. Brown stood at the table. She was directly facing the stairs. Two other teachers, Hannah Hughes and Madelaine Riley, were at, or near, the table but neither had the unobstructed, direct view of the stairs that Ms. Brown had. The video shows that as Ms. Ortiz was placing her crate on the ground, M.S. came down the stairs behind her. As M.S. passed, Ms. Ortiz appeared to recoil slightly with her right arm, but it is unclear whether this movement was in response to a touch from M.S. or simply an adjustment of her arm after releasing the weight of the crate. The angle of the video is to the side of the participants, making it impossible for the viewer to state definitely whether or not M.S. made contact with Ms. Ortiz. It is possible to state that any contact was minimal, no more than a brushing as M.S. went past. Ms. Brown, who was directly facing Ms. Ortiz and M.S., credibly testified that M.S. did not touch Ms. Ortiz. The second part of the video was 81 seconds long. It began a second or two before the end of the first video and showed what occurred in the subsequent minute or so. M.S. picked up a snack and started to go outside. He dropped a portion of the snack, apparently without realizing it. An adult stepped in to pick up the dropped snack as M.S. proceeded to the door. M.S. stopped at the door and walked back into the building to an area out of camera range. Ms. Brown followed him. As this was happening, Ms. Ortiz remained standing at the bottom of the stairs with her crate at her feet. She turned her head to see where Ms. Brown was going. A few seconds after Ms. Brown passed out of camera range, Ms. Ortiz began to roll her crate toward the building entrance, then stopped and turned around to hug another woman who walked into camera range. After the hug, Ms. Ortiz rolled her crate out of the building. Roughly 45 seconds later, Ms. Brown and M.S. walked back into the frame. Ms. Brown had her arm around the child’s shoulder as they walked back up the stairs. The second video ended as they walked up and out of the frame. Mr. Roye testified that he first recorded the eight second segment and sent that to Ms. Brooks. After viewing the video, Ms. Brooks asked Mr. Roye to go back and retrieve more footage to ensure that nothing was missed.1 Mr. Roye was uncertain whether he provided the 81-second video to Ms. Brooks later the same day, but was certain that he provided it no later than the next day. Ms. Brown’s testimony was consistent with the videos. She was looking directly at both Ms. Ortiz and M.S. as they were coming down the stairs. Ms. Brown testified that M.S. did not touch Ms. Ortiz in any way when he came down the stairs. M.S. “absolutely” never touched Ms. Ortiz. He never came within six inches of her. Ms. Brown noted Ms. Ortiz’s recoiling gesture as M.S. passed. Ms. Brown believed that Ms. Ortiz gestured because she was “aggravated with him.” Ms. Ortiz alleged that M.S. reached the bottom of the stairs, turned to face her, and kicked the crate at her feet. Ms. Brown testified that this did not happen. Ms. Brown was positive about it because “I was standing right there.” The videos do not show M.S. turning back to face Ms. Ortiz at the bottom of the stairs. The other adult witnesses to the incident, Ms. Hughes and Ms. Riley, provided written statements. Neither of these individuals was called as a witness at the hearing. Their hearsay written statements were not offered into evidence. 1 The record is unclear whether Ms. Brooks directly asked Mr. Roye for the videos or whether Ms. Brown acted as an intermediary. The difference is irrelevant because the record is clear that Ms. Brooks was the initiator of the request. Ms. Ortiz testified that the incident occurred as follows: MS came down the stairs. I went to the bottom of the stairs. I never said that he pushed me. I never said that he hit me. He came down. He was very close to me. It was very quick. He came -- he took a snack, threw it on the floor. He stood in front of me. I felt the kick. It was like a ram kick. And that's how I explained it. No one ever asked me to explain what a ram kick was. But that's what I felt. He went and got a second snack and then went through the blue curtains where they receive -- the packages that come in are received. I gasped for air. I felt a little dizzy. I felt my body leaning towards the left. I was trying as best I could to deal with the pain because there were still students there and, as a teacher you don't want the students to see you weak. But I never said that he hit me. I felt a ram kick as if to push me. * * * He turned and stood directly in front of me, kicked the crate that hit my foot, that sent the shock pain up my leg to my thigh, my waist. Caused me to feel dizzy. It caused me to feel I was losing my balance and feel my body shifting to the left side. Ms. Ortiz conceded that the video did not corroborate her testimony that M.S. kicked her or the crate in front of her. She contended that the video only shows “clips,” not the sequence of events as they actually occurred. Ms. Brown testified that the videos showed the sequence of events exactly as they occurred. Mr. Roye testified that he had no ability to edit or alter the surveillance footage. After repeated viewings of the videos, the undersigned accepts the testimony of Ms. Brown and Mr. Roye on this point. While the videos do not include time stamps that would definitively establish their continuity, there is nothing about them that causes suspicion of alteration or editing. Ms. Ortiz’s testimony is not credible. M.S. did not kick her crate. On the video, Ms. Ortiz gives no outward indication that she is in pain. She hugs the other woman and appears to easily roll her crate out the building’s entrance. As noted above, Ms. Ortiz stated in her Employee Accident Report that “[M.S.] ran down the stairs and rammed into me to push me out of his way.” Based on all the evidence presented, it is found that Ms. Ortiz made a false statement on the Employee Accident Report. Dr. Melissa Peoples-Fullmore is the Chief of Schools at KIPP, functioning essentially as an assistant superintendent. After reviewing the videos, Dr. Peoples-Fullmore and Ms. Brianna Odom, KIPP’s HR Associate, notified the worker’s compensation carrier that they did not think Ms. Ortiz’s accident claim was legitimate. In consultation with KIPP attorneys and the workers’ compensation carrier’s attorney, Dr. Peoples-Fullmore made the decision to deny Ms. Ortiz’s claim. Dr. Peoples-Fullmore also made the decision to terminate Ms. Ortiz’s employment because of the false statements in the Employee Accident Report. Dr. Peoples-Fullmore testified that while the false report was significant, it was not the most important factor in her termination decision. Dr. Peoples-Fullmore was more concerned that Ms. Ortiz was willing to allow her false report to cause M.S. to be wrongfully disciplined by the school. “Lying on a child” was the worst ethical infraction committed by Ms. Ortiz and a firing offense in the opinion of Dr. Peoples-Fullmore. On November 7, 2018, Ms. Odom communicated with her HR superior regarding Ms. Ortiz’s continued employment. On the same day, a Notice of Denial was issued on Ms. Ortiz’s workers’ compensation claim. On November 8, 2018, Ms. Ortiz’s employment with KIPP was terminated. At the hearing, Petitioner presented documentary evidence and testimony regarding past workers’ compensation claims filed by Ms. Ortiz. There was no assertion that any of Ms. Ortiz’s prior claims were false or fraudulent. Mere evidence of past claims has no bearing on whether Ms. Ortiz’s claim in this case was credible and has played no part in the findings of this Recommended Order. Petitioner has demonstrated, by clear and convincing evidence, that Ms. Ortiz gave a false statement to her superiors, accusing a student of actions that could have had serious detrimental consequences for the student and resulting in the filing of a false workers’ compensation claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Education Practices Commission enter a final order finding that: Respondent violated the statutes and rules listed above; Respondent’s educator’s certificate be suspended for a period of two years from the date of the final order; Respondent be placed on probation for a period of two years after her suspension, with conditions to be determined by the Education Practices Commission; and prior to the reinstatement of her educator’s certificate, Respondent be required to take a college level course in professional ethics for educators. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of January, 2021. COPIES FURNISHED: Steve Rossi, Esquire Law Offices of Steve Rossi Suite 2 533 Northeast 3rd Avenue Fort Lauderdale, Florida 33301 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues are whether Respondent verbally disparaged students or grabbed their clothing and, in one case, stepped on a student's foot, so as to fail to protect students from conditions harmful to learning, in violation of Florida Administrative Code rule 6A-10.081(2)(a)1., or to intentionally expose students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081(2)(a)5., and thus violate section 1012.795(1)(j), Florida Statutes; if so, an additional issue is what penalty should be imposed, pursuant to section 1012.795(1).
Findings Of Fact At all material times, Respondent has held educator certificate 989254. For over 13 years, she has been employed as a teacher by the Miami-Dade County School District. During the 2016-17 school year, Respondent was teaching fifth grade at a Miami-Dade County elementary school. Approximately 28 students were assigned to her class. On October 11, 2016, Respondent walked her students from the basketball court to her classroom in preparation for the start of instruction at 8:35 a.m. One or more of a small group of students sitting with S.L., also a student, complained to Respondent that S. L. was bothering other students. Directing herself to the class in general, Respondent told the students to stop disrupting and settle down for class. She warned the class that, if she received one more complaint, the misbehaving student would have to change seats. After receiving this warning, another student complained about S.L., so Respondent directed him to take a seat at an empty table. S.L. initially refused to move, but eventually did so. However, he continued to disrupt other students by calling them names, exhibiting aggressive body language, and even getting out of his seat, as though to charge a student. Respondent directed S.L. to stop misbehaving. He retorted, "you're not smart, and the kids are dumb." Trying to restore order, Respondent approached S.L.'s table with a mirror used for science class. Placing it within his reach and extending his comment that his classmates were "not smart," Respondent said words to the effect, "if you could see your behavior, you'd know it's not smart." By using "not smart," rather than a negative term, such as "stupid," to describe misbehavior, Respondent attempted to convey a positive message while trying to reshape S.L.'s behavior. Without permission, S.L. got up from his desk; walked to the door; announced that he was going to the principal's office to complain that Respondent had disparaged him, adding that the principal had told him to come anytime, so she could fire Respondent; defiantly stuck out his buttocks toward the class; and left the classroom. By the time that Respondent was able to call the office to advise that S.L. was headed their way, the principal's secretary advised that he was already there. Having lodged his complaint with the principal, S.L. returned to class, resumed his seat, and, using a sharp object, carved onto the desktop, "Stupid Anderson popo." "Popo" is slang for "police," although Respondent thought that it meant something about shooting. Respondent never abused the children with demeaning terms, such as "pig," "dumbass," "fat," or "ugly," although S.L. used some of these terms when verbally assaulting his classmates. The facts set forth in the preceding six paragraphs track Respondent's testimony, which has been credited. In opposition to this version of events, Petitioner called a single eyewitness, T.F., who was a student in the classroom during the incident in question. By the time of the hearing, T.F. was attending a Miami-Dade middle school, and S.L.'s school assignment was not disclosed in the record. T.F. gave two statements. The first statement, which was typewritten by a Department of Education investigator, was given on October 28, 2016. The second statement, which is in T.F.'s handwriting, was given on October 14, 2016, and the purpose for which this statement was made is undisclosed in the record. The typewritten statement consists of questions and answers. In this statement, with the questions and one irrelevant answer omitted, T.F. asserts: [Respondent] is always calling [S.L.] names. She calls him fatty and ugly. She even put a mirror in front of his face and said, "Look at your ugly face." She did this in front of all of us and I felt really bad for him. She also calls us names. She calls us dumb, stupid and ugly. She even called me dumb and stupid. I went to the bathroom to cry. She made me feel bad. She also calls the boys pigs. * * * . . . she curses at us when she is mad and says we are doing crap, screams and yells a lot, and she told [S.L. and another student identified only as H.] to shut up their fat lips. She also hit [J.F.] and [M.B.] all the time. She grabbed [J.F.] hard by the arm and squeezed his arm and she also hit [M.B.] hard on the head with a closed fist. * * * When she is really mad at us she screams, yells, calls us names, and hits the students. She hits the boys on the head and the arm. * * * . . . I am afraid of her, and she makes me feel bad when she calls me stupid and dumb. I cry all the time. We are all happy in the class when she does not come to school. [S.L.] was the one she mistreated the most. When [S.L.] was in a fight and bleeding, she was laughing because he was hurt. The handwritten statement states in its entirety: The Class/P.E. Court in the class [S.L.] came out of nowhere and start crusing [cursing] my mom my family and puting his body in my face and saying kiss his body and lick his private part. Saying nasty stuff in creol calling me pig stink bug [doudon?] head hiting me. In P.e. he got a stick and treating [threatening] that he is going to cut my neck of [off] and pock [poke] my eyes. whene I don't give him something he get's mad and say lick his boody [body? booty?] and he Hit me with a basketball. when I wrote the bully fomr [form] he got mad and took the form and rip it and he spit in my face whenever I talk to [S., another student] or other people some time he makes me cry. T.F.'s direct testimony consisted entirely of her agreeing with everything in the typewritten statement, although it was unclear, during her testimony, if she independently recalled the comments and actions described in the statement. Also, most of the questions posed to T.F. on direct were leading. On cross examination, T.F. identified her signature on the handwritten statement and recalled some, but not all, of its contents. Specifically, she admitted that S.L. had bullied her and made her cry. Initially, T.F. denied that S.L. had spit in her face, but then recalled that he had done so by accident. She testified that she could not recall that S.L. had threatened to cut her neck with a stick, even though such an action would typically be memorable to the victim. The reference in the handwritten statement to a bully form is a form that T.F. and a few other students submitted, at the urging of Respondent, a few days after the October 11 incident, but the record does not disclose what action, if any, the school or district administrators took in response to these complaints about S.L.'s bullying. In testifying, T.F. withdrew her typewritten statement about Respondent's calling her dumb and stupid and instead stated that she liked Respondent as a teacher. Also, T.F. testified that S.L. had called the entire class dumb, as Respondent testified. On redirect, T.F. admitted, evidently as to the handwritten statement, "most of this stuff I don't remember." As noted above, the hearing took place three years after the earlier of the two alleged incidents, and it is obvious that the 2016-17 school year had presented some challenges for T.F. T.F. impressed the administrative law judge as a child who was trying to tell the truth, but was under considerable pressure in October 2016 and continuing pressure, even through the time of the hearing. When T.F. testified that she had cried, not from Respondent's actions, but from the bullying of S.L., her father interjected by asking his daughter why she had not told him about this, and she replied that "you wouldn't care." T.F.'s father was not a witness, and his statement is not noted to support a finding that T.F. did not tell him about the bullying; however, his interjection and T.F.'s response depicted some of the stress to which T.F. has been subjected over the matters described above. In general, the typewritten statement lacks the spontaneity and inattention to grammar and diction that characterize the handwritten statement. It is questionable whether one word in the typewritten statement--"mistreated"-- would be a word chosen by T.F. It is not so much that the word requires an advanced vocabulary, but the word requires a level of abstraction that is not evidenced in the handwritten statement, which is graphically episodic. It is impossible to find by clear and convincing evidence that the typewritten statement records the words of T.F., free of substantial editing by the investigator. Additionally, the handwritten statement effectively impeaches the typewritten statement. S.L. bullied T.F. to the point of making her cry at school. The handwritten statement suggests the possibility that S.L. forcefully tried to intimidate T.F. in her effort to report his bullying. Significantly, S.L. still had daily access to T.F. when she gave the typewritten statement. Lastly, T.F.'s testimony was unpersuasive. She did not appear to recall independently what she testified to on direct. It did not appear that she was even willing to read aloud her typewritten statement, as she was willing only to agree to it in response to a series of leading questions. For reasons undisclosed in the record, Respondent, who was represented by a union representative, agreed to a suspension of 25 workdays without pay for the October 11 events. Respondent did not try to explain her choice not to contest the charges, nor is it necessary to infer one, because any weight that could be assigned to such a choice, on these facts, does not establish or help to establish clear and convincing evidence of wrongdoing. This suspension seems to have followed an earlier job action removing her from student contact for 90 days, based on a verified finding of mental injury to S.L. by a protective investigator employed by the Department of Children and Families (DCF)--an administrative action that is entitled to no weight for the reasons set forth in the Conclusions of Law. Petitioner has failed to prove by clear and convincing evidence any of the allegations arising out of the October 11, 2016, incident. Respondent testified that she did not grab students by their collars or step on their feet. The only evidence to the contrary is the discredited evidence provided by T.F. As was the case with the October 11 incident, Petitioner did not call as witnesses the alleged victims in this April 6, 2017, incident. The Miami-Dade County School District issued a reprimand for the alleged April 6 incident. Nothing in the record suggests that Respondent had a right to contest this charge, and, given the mildness of the punishment, it is impossible to infer that she did; but, again, a choice not to contest this charge would not support an inference of guilt by clear and convincing evidence. Petitioner has failed to prove by clear and convincing evidence any of the allegations involving grabbing students by their collars or stepping on the foot of a student.
Recommendation It is RECOMMENDED THAT the Education Practices Commission enter a final order finding Respondent not guilty of the allegations set forth in the Administrative Complaint, as amended. DONE AND ENTERED this 10th day of December, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 10th day of December, 2019. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed)
The Issue May Petitioner, Polk County School Board (Board), terminate the employment of Respondent, Stephen Brown, as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Dennis F. Dunn, dated January 24, 2013, asserting that Mr. Brown engaged in serious misconduct, providing just cause to terminate his employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Board employed Mr. Brown as a classroom teacher through a Professional Services Contract. By letter dated January 24, 2013, Assistant Superintendent Dennis Dunn advised Mr. Brown that Polk County School Superintendent John Stewart intended to recommend his termination to the Board for improper use of the "Board issued laptop computer due to pornography and sexually inappropriate images" found on the computer. Mr. Brown has been a teacher for 18 years. Ten of those years, including 2012, Mr. Brown taught at the Board's Inwood Elementary School (Inwood). This was not the first time the school took action against Mr. Brown. On March 31, 2011, Inwood Principal Amy Heiser-Meyers gave Mr. Brown a letter confirming a verbal warning that she gave him during a conference that day. The letter stated: When redirecting or addressing a student's behavior, refrain from getting into their face and also refrain from making inappropriate comments and actions that are disparaging and harmful to the student's mental health. As the authority figure in the classroom, it is not appropriate to use your body and physical proximity to intimidate the student. Your actions towards the student violated the Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida: State Board of Education Rule 6B-1.006 FAC (a)(e)[sic]. The letter also advised that the conference was a first step of the progressive discipline outlined in the Teacher Collective Bargaining Agreement and cautioned that further discipline, up to and including termination, might be imposed for additional "unacceptable behaviors." On April 23, 2012, Principal Heiser-Meyers delivered Mr. Brown a letter confirming a discussion during a conference that day. This letter was "not to be construed as disciplinary in nature, but rather as a letter of concern." It addressed the importance of meeting deadlines and processing paperwork, specifically not having student award certificates ready in time for a scheduled lunch awards presentation. In a June 6, 2012, letter, Ms. Heiser-Meyers confirmed a verbal warning that Mr. Brown violated "The Principles of Professional Conduct of the Education Profession in Florida [sic] (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. AND (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement." Principal Heiser-Meyers' letter stated that she conducted the conference "pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement" and that it was the first step of progressive discipline outlined in that section. It also cautioned that continued "unacceptable behaviors" could result in disciplinary action up to and including termination. On June 4, 2012, and on August 31, 2012, Mr. Brown signed the Board's Employee Equipment Use Contract for a laptop computer assigned to him. The contract included these conditions: I AGREE TO RETURN THE ABOVE EQUIPMENT IN THE SAME CONDITION IT WAS IN UPON CHECKOUT AND AGREE TO PAY FOR REPLACEMENT DUE TO LOSS OR DAMAGE BEYOND REPAIR THAT MAY OCCUR WHILE IT IS ASSIGNED TO ME. REPLACEMENT COST IS CONSIDERED THE COST TO PURCHASE NEW EQUIPMENT. I AGREE TO USE THE EQUIPMENT FOR SCHOOL BOARD PURPOSES ONLY, AND UNDERSTAND THAT I WILL BE RESPONSIBLE FOR INJURY OR DAMAGES CAUSED BY ANY INAPPROPRIATE OR UNAUTHORIZED USE OF THIS EQUIPMENT. I WILL NOT BE HELD RESPONSIBLE FOR ANY REPAIRS RESULTING FROM NORMAL AND ORDINARY USE OF SUCH EQUIPMENT. Mr. Brown took his school-issued laptop computer home around November 30, 2012. He used it to search for information about cash advance loans he could obtain to repair his automobile. While Mr. Brown was searching for loan information, a red screen displaying the title "FBI Federal Bureau of Investigation" appeared. The screen advised that the computer had been locked and stated that Mr. Brown was subject to several federal criminal charges, including possession of child pornography and gambling, unless he paid $200.00 within 48 hours to a designated account. Mr. Brown shut down his computer. He tried restarting and shutting down the computer a few times to see if the message would go away and the computer would operate. Mr. Brown then called the FBI office to report the incident. The individual to whom Mr. Brown spoke told Mr. Brown that he was describing a frequently reported virus and that he would need professional help removing it. Mr. Brown took the laptop to the office supply store, Staples, the following day to obtain its virus removal service. He paid for the service and purchased an extended warranty for $199.00. Mr. Brown took the computer to Staples, instead of to the school's information technology office, because he thought that, since the virus appeared while he was using the computer for personal purposes, the terms of equipment-use contract made him responsible for repairs. Mr. Brown did not report the problem to the school's technology office. Staples was unable to service the computer for three days. When Staples did service the computer, it removed the virus. But the Staples technicians could not repair damage to the hard drive and replaced it. The technicians also re- configured the laptop's original hard drive as an external hard drive with Mr. Brown's documents and other files on it. While Mr. Brown's laptop awaited service at Staples, he tried to use the school computer of his colleague, Penny Humphrey. Ms. Humphrey reported his efforts to the school's computer network manager, Marilyn Layton. Ms. Layton reported the issue to the principal, who advised school board investigator Barry Marbutt that he was concerned Mr. Brown might have inappropriate material on his laptop. Mr. Marbutt interviewed Mr. Brown, who told him of the FBI virus and the repairs by Staples. Mr. Marbutt took Mr. Brown's laptop. Mr. Marbutt later learned from a Staples representative about the old hard drive being reconfigured as an external drive. He then obtained the external drive from Mr. Brown. Sid Lee, senior manager of the Board's electronic equipment repair and support department, examined Mr. Brown's laptop and software to determine if the computer held any inappropriate material. Mr. Lee did not conduct any tests or analyses to determine if Mr. Brown's report of a virus was accurate. The computer and associated external hard drive contained over 200 pornographic images, admitted as Exhibit 6. They were located at the address “D/Documents and Settings\stephen.brown\Local Settings/Temporary Internet Files\content.IE5," which is also referred to as the browser cache. The parties stipulate that the images are pornographic. Many of the images depict sexual violence. Many depict scenes with several participants, bound females, or hooded or masked participants. None of the images, or the identifiable sources for them, match data sets of known or suspected child pornography, including the DHS-ICE Child Exploitation Hash set and data sets obtained from the FBI, state, and local law enforcement agencies. All of the images are generated by small files. The size of the files is consistent with the images being either "popup" or "thumbnail" images. A "pop-up" is a pop-up window on a computer screen.1/ A "thumbnail" is "a miniature computer graphic sometimes hyperlinked to a full-size version" of an image.2/ The files occur in a few clusters in the Internet browser cache of the laptop. On July 19, 2012, approximately 113 of the pornographic images were among 171 images downloaded into the laptop's browser cache between 1:54:06 p.m. and 1:57:11 p.m., a period of three minutes and five seconds. This means that they downloaded extremely quickly. For instance, Exhibit 6 shows that at 1:56:23 p.m., four images downloaded. At 1:56:24 p.m., six images downloaded. The average download rate for the time period was 1.08 seconds per image. This rate is not consistent with a person manually browsing the Internet. Seven of the images are plainly advertisements for pornographic websites or DVDs. Twenty have watermarks on them depicting several different website addresses. During the July 19, 2012, time period, when the files were downloaded, there were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites. During the July 19, 2012, time period one or more pop-ups attempted unsuccessfully to download malicious software. The analysis of the computer, however, showed frequent log-ins to Facebook at other times and days. The typical pattern of computer users is to perform more than one function or go to more than one website when logging on to the internet. On August 20, 2013, a single pornographic video was downloaded. There were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites at the same time. On November 29, 2012, 225 image files were downloaded between 3:59:44 p.m. and 4:12:26 p.m., a period of 12 minutes and 42 seconds. This indicates that the images downloaded quickly, at an average rate of one image per 3.4 seconds. This rate is not consistent with a person manually browsing the internet. At least 101 of the images were pornographic. As with the July 19, 2012, time period, there were no contemporaneous log-ins to other websites at the same time. The images included 12 advertisements for penis enlargement techniques or substances and 14 advertisements for services facilitating sexual encounters with local females. There were also images with website address watermarks; but the watermarks are not legible. Staples technicians determined the laptop was infected with the malware virus, “Reveton," also known as the "FBI virus." The virus has the ability to start a computer, access the Internet, visit websites, and download images without the computer owner's knowledge or participation. Using these abilities, the virus's masters can and do remotely operate enterprises that include "click jacking" and "ransoms." In "click jacking," the virus causes the host computer to activate, log on to the Internet and quickly visit websites to click on advertisements, including pop-ups. This generates revenue for the site hosting the advertisement or pop-up, since compensation is by "click." In "ransoms" the virus locks up the computer and displays a message like the one Mr. Brown's laptop received demanding payment and threatening law enforcement action, unless the computer operator sends a payment in a manner and to a recipient described in the "ransom note." Several indicators make it as likely as not that the pornographic images found in the laptop's cache were downloaded as the result of the FBI virus, rather than any action by Mr. Brown. Those indicators are: (a) there were no contemporaneous log-ons to any other websites; (b) the rapid speed at which the images downloaded; c) the fact that all of the images were small "thumbnail" or "popup" sized files; (d) there was no evidence of full-sized image files; and (e) Mr. Brown in his testimony and during the investigation has consistently denied using the computer to access pornographic images. In addition, the fact that Mr. Brown contacted the FBI indicates lack of apprehension about the consequences of contacting law enforcement authorities. Mr. Brown's decision to seek assistance from Staples was reasonable in light of the District's strict equipment use policies and the fact that the problem occurred when Mr. Brown was using the computer for personal reasons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, rescind the termination of Respondent, Stephen Brown, and award him back pay and full benefits for the period during which he was suspended, which began January 20, 2013, when Mr. Brown requested a hearing. DONE AND ENTERED this 21st day of August, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2013.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated December 17, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educator's certificate and are alleged to have violated provisions(s)of Section 1012.795 and related Rules. In cases where there is clear and convincing evidence to support any alleged violation, Petitioner is responsible to bring the case forward to the Education Practices Commission (EPC) for the imposition of discipline. At all times material to this case, Sanchez holds a Florida educator's certificate and is certified to teach social science. Sanchez was employed as a social studies teacher at Pinellas County's Northeast High School from January 1996 until August 8, 2001. He resigned on that date when confronted with the allegations which give rise to this case. Sanchez is a second-generation educator. Over the years he has been an effective teacher in a variety of settings, and has had a positive impact upon the lives of many students. At times relevant to this case, Sanchez had personal problems which he describes as "marriage problems, ex-wife hassles, money issues, lack of focus." In an effort to address the "money issues," Sanchez took a part time job at Sam's Club (Sam's), where he continues to work. At times relevant to this case, Sanchez was considered an excellent employee and team player by both Sam's and Northeast High School. At times relevant to this case, Sanchez shared a classroom at Northeast High with a teacher colleague. Each was provided by the Pinellas County school district with a classroom computer with Internet access. The computers were to be used exclusively for pedagogical purposes, including work related communications. Sanchez knew or should have known that the use of his classroom computer for non-professional purposes, including the exchange of sexually explicit or suggestive e-mail, or to download pornography, was expressly prohibited by the Pinellas County school district. At all times material to this case, the Pinellas County school district protected all of its computers with a so- called filter program called Net Nanny. The program's purpose is to filter out inappropriate websites, including pornographic websites. However, the Net Nanny filter is easily defeated if an Internet service provider such as America On Line (AOL) is installed on an individual computer. For that reason, the Pinellas County school district properly prohibited teachers from installing AOL on their assigned classroom computers. Sanchez claimed not to know of this prohibition, but the fact finder credits the testimony of Assistant Principal Cynthia Hearn (Hearn), Northeast High's technology specialist, who had a clear and precise recollection of having personally instructed Sanchez to remove AOL from his computer at least six months prior to the events giving rise to this case. Sanchez freely admits that at all times relevant, AOL was on his classroom computer and frequently utilized because he considers it "an amazing resource for teachers." At all times relevant to this case, AOL users have access to an "instant message" service. Sanchez claims that at relevant times, he confined his use of this service to brief messages such as "I'm on the way home" to his then-wife. Sanchez also admits to using the instant message service "on a fairly regular basis" to participate in informal work-related discussion chat rooms with "several colleagues that had . . . similar set ups on their computers at work as well. " Sanchez' description of his use of AOL was less than forthcoming. At times relevant to this case, Sanchez established Internet accounts in names such as "FunkyLoverMan99@yahoo.com" and used these accounts to access the Internet via AOL for purposes of exchanging sexually explicit and sexually suggestive e-mail with a woman with whom he was having an extra-martial affair. In addition, at times relevant to this case Sanchez downloaded a substantial amount of adult pornography to his classroom computer. Some of these unauthorized uses of the classroom computer occurred during hours when students were in the classroom. There is no evidence regarding what, if any, specific pornographic images or sexually inappropriate e-mail was viewed by any student. Sanchez' misuse of the classroom computer came to the attention of Northeast's administration on March 6, 2001, when two students from Sanchez' class were sent to the office of Assistant Principal Harry Brown on disciplinary referral. The girls alleged to Brown that Sanchez was using his computer for personal e-mail and further claimed they had seen pictures of girls on his computer. After school, Brown, accompanied by Hearn, entered Sanchez' classroom and turned on the computer assigned to Sanchez. Brown noticed an AOL icon and asked Hearn to launch the program. She did so, and immediately the AOL instant messenger program opened and revealed messages directed to Sanchez. Hearn reviewed the computer's records of websites which had been accessed that day. Some appeared to be teen- oriented sex sites. The computer assigned to the teacher who shared Sanchez' classroom was also turned on and its content reviewed. No inappropriate websites or programs were found. Brown and Hearn seized the central processing unit of Sanchez' computer and locked it in a closet in the main office. The following day, Michael Bissette (Bissette), chief investigator for the Pinellas County school district's Office of Professional Standards, reviewed the history as recorded on the central processing unit with regard to websites which had been accessed on Sanchez' computer. Finding a number of pornographic sites, Bissette turned the central processing unit over to law enforcement to determine if any crimes had been committed. It is the policy of the Pinellas County school district not to conduct any administrative investigation of an employee during the pendency of a criminal investigation, nor to allow a teacher to teach while under criminal investigation. Accordingly, the Pinellas County school district made arrangements to have a substitute teacher cover Sanchez' classes indefinitely pending the outcome of the criminal investigation. Sanchez was at first unaware he was under investigation because for much of March 2001, he was on leave for reasons related to the illness and subsequent death of his father. Upon his return from leave on or about March 29, 2001, Sanchez went to his classroom to prepare for the day and was soon confronted by an assistant principal who told Sanchez to gather his things. Sanchez was thereafter escorted off campus. Months later, law enforcement returned the case to the Pinellas County school district, having determined that there was no evidence that any crime had been committed. However, an analysis of the central processing unit revealed that thousands of adult pornographic images had been downloaded to the computer assigned to Sanchez. Pursuant to Pinellas County school district procedures, Bissette arranged a meeting with Sanchez and his union representative Betty Shields (Shields) to be held on August 8, 2001. At that meeting, and on other occasions prior to the final hearing, Sanchez admitted accessing adult pornography sites. He has consistently denied accessing teen pornography. This is a distinction without a difference in context of this case, because at all relevant times, the Pinellas County school district had a zero tolerance policy with reference to the use of its computers to access pornography of any kind. Employees believed to have abused computer access in this manner are in all cases offered the opportunity to resign in lieu of termination proceedings. Pursuant to that policy, Sanchez was offered, and accepted, the opportunity to resign his teaching position with the Pinellas County school district. At hearing, Sanchez insisted that Bissette coerced his resignation through the use of tactics which were improper and possibly illegal. Sanchez further testified that he submitted to Bissette's coercive tactics in part because he had incompetent union representation. Shields died prior to the hearing and thus was unable to be present to defend herself. The trier-of-fact carefully observed the demeanor of Bissette and Sanchez as they testified regarding all aspects of this case, including the circumstances surrounding the resignation. Under all of the circumstances, including the documentary evidence; the motivation to recall events in a particular light; and the level of detail one would reasonably expect each to be able to recall after three years and in light of the relative significance of the meeting to each man who was present, it is determined that Bissette's recollection of the circumstances surrounding the resignation is much closer to the truth than Sanchez'. In particular, it is determined that Sanchez' resignation was not coerced. The fact that Sanchez resigned voluntarily is not deemed to be an admission of any nor all of the conduct alleged in the Administrative Complaint, and has not been considered with respect to the matter of whether or not the alleged violations were committed by Sanchez. In addition to accusing Bissette and Shields of incompetence or worse, without corroborating evidence of any kind, Sanchez also repeatedly suggested--again without corroboration of any sort--that other individuals were responsible for some or all of the pornography found on his computer. Specifically, Sanchez attempted to cast suspicion upon student helpers, workers involved in construction projects at Northeast High, and even the teacher with whom Sanchez shared his classroom. This tactic was ill-advised and unavailing. Sanchez does not contend, nor could he, that anyone but he was responsible for the e-mail exchanges between himself and his mistress. With reference to the pornographic websites, it is emphatically noted that there is not a shred of evidence connecting anyone but Sanchez to such websites. Sanchez appealed for sympathy for his personal problems, and made repeated efforts to draw attention to his years of exemplary teaching service. It is not necessary to decide when, if ever, a professional's personal problems would justify seeking refuge in pornography and an extramarital affair, inasmuch as Sanchez seeks exoneration, not mercy. Sanchez' blanket denial that he downloaded pornography is not credited. In addition to making baseless accusations against innocent third parties, Sanchez' credibility was tainted by deceptive testimony at hearing about even inconsequential matters. For example, Sanchez was asked if he visited his mistress on the way to school in the mornings. He replied, "On occasion, yes." Under follow-up questioning, he acknowledged, "It was actually a fairly regular visit." To take another example, in the course of attempting to implicate others in the misuse of the computer, Sanchez intimated that former students, present in the classroom to "grade papers," had access to the computer. Asked to explain why former students would have been grading papers, Sanchez amended his testimony to say that former students would come by his class to "help out," but not to grade papers. The lack of candor exhibited by Sanchez in his hearing testimony is not, of course, proof of the charges set forth in the Administrative Complaint. It does, however, provide an extra measure of confidence in the proof offered by Sanchez' colleagues who testified regarding their knowledge of and concerns regarding his trustworthiness and continued efficacy as a teacher. Pursuant to the Pinellas County school district's above-described zero tolerance policy, Sanchez will not be restored to employment as a teacher in that district, regardless of the outcome of these proceedings.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Respondent guilty of violating Subsections 1012.795(1)(f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006 (4)(c). It is further RECOMMENDED that Respondent’s teaching certificate be suspended retroactive to August 8, 2001, through and including the date of the entry of a Final Order by Petitioner, followed by five years of probation under conditions deemed appropriate by the EPC. Such conditions may reasonably include evaluation by a mental health professional with training in pornography addiction to determine if Sanchez poses any risk of repeating the conduct which gave rise to this case; and denial of access to a classroom computer and/or periodic examination of any classroom computer by appropriately trained personnel. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 29th day of October, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Robert E. Sickles, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33601-3310 Joan Stewart, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether just cause exists to impose discipline on Respondent, David Meyer, for violating provisions of statutes, rules, and/or policies, and, if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees within the Franklin County School system. There is one large public school in Franklin County: Franklin County School (the “School”), which contains grades pre-kindergarten through 12. There were approximately 1,220 students enrolled at the School in the 2014-2015 school year. There are approximately 170 employees working for the School Board. There is also a charter school and one private school in the county. At all times relevant hereto, Mr. Meyer was a teacher at the School. At the time of his termination from employment by the School Board, Mr. Meyer was teaching an alternative education class (referred to as “SOAR”) containing only a few students. His classroom was located in Building 8, Room 807, located just behind the School administrative building. Mr. Meyer has been employed by the School Board since 1990 and has held various teaching positions. He also served as the IT director for the School Board for approximately 10 years, but returned to the classroom in the 2013-2014 school year when Eagle Tree Technologies took over IT responsibilities. Mr. Meyer’s teaching certification is in science. During his entire career with Franklin County schools, he was never disciplined before the events related to the present case. Eagle Tree Technologies has a contract with the School Board to provide IT services to the School. Eagle Tree Technologies will be referred to herein as “the IT department.” In August 2014, i.e., at the start of the 2014-2015 school year during which all events of the present action took place, Mr. Meyer was tasked with teaching students in the SOAR program, a project intended to help children who were struggling with school for one reason or another, mostly behavioral or absentee issues. At the beginning of the school year, there were no students in Mr. Meyer’s classroom. Because he had no students of his own to teach, Mr. Meyer would fill in for teachers who were out sick, in training, or otherwise absent from their classrooms. As the year progressed, a few students were assigned to SOAR. Mr. Meyer basically taught those students in all of the core subjects, i.e., math, science, reading, language arts, civics, and history. When the first SOAR students were assigned, Mr. Meyer had several computers in his classroom: his teacher workstation, two or three student computers, his personal computer, and at least one laptop. At some undisclosed time in August 2014, Mr. Meyer was having trouble getting his teacher workstation to “come on right away.” In order to remedy that problem, Mr. Meyer “wiped” his computer and re-installed Windows 7. He did not check with the IT department before doing so, but admits that he probably should have. As a result of Mr. Meyer’s actions, the IT department could not access Mr. Meyer’s computer by way of its “TeamViewer” remote access program. Herrington left Mr. Meyer a note on his classroom white board, telling Mr. Meyer to reconnect to the School network. In December 2014, just prior to the School’s winter break, the IT department sent out an email to all staff warning against non-School Board-issued computers (including laptops) being connected to the School network. There was at that time a concern at the State Department of Education of potential computer hacking in statewide test sites. Personal laptops were a potential source for hacking. Mr. Meyer had, in fact, issued a warning against the use of personal laptops on the School system when he was the IT director back in 2013. Shortly after the IT department’s email warning went out, Herrington went into Mr. Meyer’s classroom and saw non- School Board computer equipment plugged into the School network portals. The equipment included a personal desktop computer, a laptop, and an external hard drive, among other items. Herrington notified an assistant principal, Ms. Walker, about what he had observed in the classroom. On January 6, 2015, Herrington, Ms. Walker, and Patty Kramer (media specialist at the School) went to Mr. Meyer’s classroom to confirm Herrington’s observations. The equipment was just as Herrington had reported. Per Ms. Walker’s direction, Herrington unplugged all the personal computer equipment from the School network. They stacked that equipment in one corner of the room and placed a sign saying “Personal” on top of the equipment. Before leaving the classroom, Herrington made sure that only School-authorized equipment was plugged into the school network. Meanwhile, Ms. Walker organized the classroom, cleaning up superfluous papers and books. The next day, January 7, Ms. Walker went back to Mr. Meyer’s room to address her findings with him, but he was absent from work that day. She came back on January 8 and talked with Mr. Meyer about what she had done two days earlier in his classroom. Ms. Walker also reminded Mr. Meyer that students were to work only on student computers, not on Mr. Meyer’s teacher workstation or on unauthorized laptops. She told him that the personal computer equipment should not be re- connected to the School system. About three weeks later, Ms. Walker went to see Mr. Meyer and saw a student sitting at the teacher workstation. She called Mr. Meyer outside the classroom and reminded him of their conversation earlier about students using his workstation. In February 2015, Herrington noticed that an inordinate amount of the School’s bandwidth was being used. He was able to track the use to Building 8 and then to Room 807, Mr. Meyer’s classroom. When he went into the room to determine what was causing the bandwidth usage, he saw that the personal computer equipment was again plugged into the School network portals. Conversely, the School Board-issued computers were not plugged into the network and their keyboards were in various states of disrepair. The teacher’s workstation was also plugged into the network. Herrington reported his findings to his supervisor, Ward, but did not address the situation with Mr. Meyer directly. On February 18, Herrington, Ward, and London went to Mr. Meyer’s classroom at approximately 6:00 in the evening to further investigate the personal computer equipment situation. They took pictures of the room and inventoried all the equipment found there. A computer audit was conducted of the computers found in the room. Herrington made copies of the computer internet histories and files. He attempted to copy the external hard drive but its contents were too extensive, so he took the hard drive back to his office where he had better copying capability. He was able to copy much – but not all – of the hard drive. The hard drive was then returned to Mr. Meyer’s classroom. Later, on or about February 24, Ward went back to Mr. Meyer’s room for the purpose of confiscating all of the computer equipment. The hard drive was missing at that time and, as of the date of the final hearing, has not been located. Mr. Meyer did not shed any light on the status of the external hard drive in his final hearing testimony. The computer audit showed that there were unauthorized computers and equipment connected to the School network, there were inappropriate internet sites visited on the computer and/or appearing on the hard drive, and there was some suspicious software on the computer. It also appeared that Mr. Meyer had attempted to circumvent the School network security system by plugging a “switch” into one of the school portals. There were two portals in the classroom, one for the teacher workstation and one for the teacher’s school-issued telephone. The switch gave Mr. Meyer the ability to allow other computers to access the teacher’s portal. This connection would presumably give users the ability to surf the internet with fewer restrictions than a student would normally encounter. Unfettered internet usage would increase the possibility of allowing a virus into the school network. That access could potentially give students the ability to access confidential school information. There was also a “bridge,” which provides some sort of network connection, at Mr. Meyer’s desk. He admits that he bought the bridge and brought it to the classroom. However, he was never able to figure out what it was to be used for and so he never connected it in the classroom. His explanation begs the question of why it was lying out on his desk, but that question was never answered at final hearing. The appearance of the bridge, in conjunction with the other devises, is – at the very least – suspicious. One of the unauthorized items found in Mr. Meyer’s classroom by the IT department was an external hard drive, which was connected to Mr. Meyer’s personal computer, which was, in turn, hooked up to the School District network. Mr. Meyer admitted bringing the hard drive to his classroom. He would transport it in his backpack and, on most days, take it home at the end of the school day. The hard drive contained a large amount of data and materials dating back several years. Ward and Herrington found many unauthorized programs on Mr. Meyer’s external hard drive, his teacher workstation, and/or his personal computers. On Mr. Meyer’s laptop computer, for example, there were programs that should only be used by the school network administrator, i.e., Ward and Herrington. Some of the unauthorized programs and material found on Mr. Meyer’s personal equipment by the IT department include: Windows Password Blocker – which could possibly have been used by Mr. Meyer to gain administrative privileges on his computer. This particular software can also help remove a password from a system so that an unauthorized person could access that system; IP Hider Pro – which is used most frequently to hide a user’s history on the internet, or, as Mr. Meyer maintains, it could be used simply to avoid advertisers who rely on a user’s history; A Hacker’s Life – which included a chapter about how to create a computer virus; Virtual Machine (VM) software – which gave Mr. Meyer’s laptop access to his teacher’s workstation; Inappropriate YouTube videos – including sexually- related videos, various prank videos, and others; A how-to book on oral sex – which included provocative pictures and explicit sexual language; and A list of XXX-rated sex questions – which also included provocative photographs and content. As to the Password Blocker, IP Hider Pro, Hacker’s Life, and VM software, Mr. Meyer said those were things he was curious about and investigated. He said that despite his IT background, he was not able to successfully install the programs and never was able to use them. Mr. Meyer’s explanation for the programs on his computer and hard drive is not persuasive and seems inconsistent with his IT background. There was also one instance when someone using Mr. Meyer’s personal computer made a Google search entitled, “Like a hacker; five steps.” If a student did that, it would be a problem; if Mr. Meyer made the search, it suggests more to the hacking issue than admitted by Mr. Meyer. As to the books on oral sex and sex questions, Mr. Meyer’s explanation seemed to change, depending on who asked him about them. In response to his counsel’s question, Mr. Meyer said he downloaded the books “last year sometime.” When asked again on cross examination, Mr. Meyer said that it might have been someone else who downloaded those things, he just did not remember. Although Mr. Meyer said none of his students saw those books, his failure to adequately supervise students means that he could not be certain of that fact. One concern of the School Board was that Mr. Meyer had a “TOR” browser installed on his computer. A TOR is generally used by people who are pirating movies and software and do not want to be detected. It is another tool, like the IP HiderPro, to help users avoid detection. Mr. Meyer admits using the switch and bridge; he asserts that the only reason for doing so was to have enough portals for his laptop, a personal printer, and sometimes other devises. The fact that it also allowed his students access to the internet while using computers in the classroom seems to be lost on Mr. Meyer. Mr. Meyer says he brought his personal computer and laptop into the classroom as a possible means of convincing his students not to destroy computer equipment. He reasoned that if he let the unruly students use his personal equipment instead of School-issued computers, they would be more likely to treat it properly. There is no credible support for this contention. The students had broken keyboards, mouse(s), and other equipment previously. And when they did so, Mr. Meyer did not contact the IT department to have the equipment repaired or replaced. Instead, he came up with the idea of replacing the equipment with his own personal equipment. The use of his personal equipment, however, violated School policies concerning outside, unauthorized equipment being connected to the School network. It was also a violation of School policy to allow the students to use his teacher workstation (even if, as Mr. Meyer alleged, other teachers allowed that to happen as well). The IT department did not find any actual harm to the school network caused by Mr. Meyer’s actions, nor did they find that a major security breach had occurred. However, it is clear there was a strong potential for harm and for a breach. For example, students were using the teacher workstation and the laptop to access social media sites and surf the internet. Students potentially had access to Mr. Meyer’s programs concerning hacking into a computer system. At one point, it was clear that Mr. Meyer’s teacher workstation and his personal computer were being used simultaneously. During that time, there were questionable and inappropriate internet websites being visited on the computers. For example, at least one person was accessing Facebook on the teacher workstation, a clear violation of School policy. Clearly, Mr. Meyer was not properly supervising students who were using the computers in his classroom. He, in fact, admits his failure to adequately supervise his students. His supposition that perhaps his daughter was using one of the computers while he worked on the other is not very likely when looking at the kind of sites being visited during the simultaneous usage. Mr. Meyer admits violating School policy regarding changing or altering a School computer by creating a second account on his workstation. He admits using the TOR browser on his personal computer when it was plugged into the School system. He admits putting a thumb-drive into his teacher workstation, but denies the IT department’s finding that he did so 10 to 15 times a day. Mr. Meyer admits that plugging additional devises into the School system could increase the potential for risk. Both the superintendent of schools and the principal at the School have serious reservations about allowing Mr. Meyer to hold any position at the School due to the fact that he could not be trusted to properly utilize the School computer system. While there could be ways to limit his access or restrict his usage, neither the Superintendent nor the Principal would be comfortable because Mr. Meyer could possibly find a way to circumvent the limitations or restrictions. There are essentially no teaching positions at the School which do not require some use of computers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Franklin County School Board, upholding the termination of Respondent, David Meyer's, employment for the reasons set forth above. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 14th day of September, 2015.
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board, for five days for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times pertinent to this case, Respondent was employed as a behavioral specialist teacher at the Sunset School ("Sunset"), a public school in Broward County. Sunset is an educational center servicing emotionally and behaviorally disabled students ranging in ages from 5 to 22, kindergarten through twelfth grades. The program at Sunset is unique in its behavior management system and mental health component which include academic, vocational, therapeutic, and behavioral interventions. On December 5, 2011, Respondent notified Principal Cottrell that she intended to seek a restraining order against Sunset student, A.W. In the dialogue that followed, Principal Cottrell requested that, when completed, Respondent provide him a copy of the court documents.1/ On that same date, Respondent presented to the Clerk of the Court for the Circuit Court of Broward County, Florida, with the intention of filing a Petition for Injunction for Protection Against Repeat Violence ("Petition") against A.W. Respondent, who was not represented by counsel, obtained the blank Petition from a clerk, and filled in the required information by hand. Upon completion, Respondent presented the Petition back to the clerk. The clerk then inquired as to whether Respondent had any additional documentation that she wished to attach to the Petition. It is undisputed that Respondent then attached four documents to the Petition. Specifically, Respondent attached 1) a Sunset School Code Report dated December 5, 2011, detailing a behavioral issue concerning A.W.; 2) a Sunset School Incident report dated December 5, 2011, again detailing a behavioral issue concerning A.W.; 3) a Sunset School Incident report dated November 1, 2011, documenting a behavioral issue concerning A.W.; and 4) a Student Accident/Illness Form dated November 1, 2011, documenting a physical confrontation by and between A.W. and Respondent. The Circuit Court issued a temporary injunction against A.W. precluding A.W. from knowingly coming within 100 feet of Respondent's vehicle and ordering the parties to refrain from contact while at Sunset. The parties were notified to appear and testify at a hearing regarding the matter on December 14, 2011. Respondent, as requested, provided Principal Cottrell with a copy of the Petition; however, the attachments were not included in the copied material. After being served with the temporary injunction, A.W.'s mother notified Principal Cottrell and complained, inter alia, that A.W.'s records had been attached to the same. In response to the parent complaint, on or about December 8, 2011, Principal Cottrell submitted a personnel investigation request to the School Board of Broward County Office of Professional Standards and Special Investigative Unit ("SIU"). The investigation request alleged that Respondent had committed Family Educational Rights and Privacy Act ("FERPA") and Code of Ethics violations. On or about December 14, 2011, the Board filed a Notice of Special Appearance and Motion to Seal Confidential Records in the underlying case. The judge granted the unopposed motion, concluding the records were confidential pursuant to section 1002.221(2)(a), Florida Statutes and "FERPA regulations," and ordered the records sealed. The previously requested SIU investigation was initiated on or about January 9, 2012. Upon completion, the matter was referred to the Professional Standards Committee ("PSC"). The PSC found probable cause that Respondent had committed misconduct in violating Board Policy 5100.1, and recommended she serve a suspension. Thereafter, the Superintendent of Schools reviewed the recommendation of the PSC, concurred, and recommended a five-day suspension. Finally, the Broward County School Board approved the recommended suspension. The documents Respondent attached to the Petition were A.W.'s educational records. Said records included personally identifiable information of A.W. obtained in the course of professional service. The parties stipulate that Respondent did not have the authorization or consent of A.W., A.W.'s parents, or Sunset to attach A.W.'s educational records to the Petition. Prior to the 2011-2012 school year, Respondent attended a preplanning conference wherein the teaching staff was advised of current information related to the Health Insurance Portability and Accountability Act (HIPPA), FERPA, federal and state law, and Board policies. Respondent also acknowledged receipt of the 2011-2012 Staff Handbook and the Code of Ethics. Moreover, Respondent signed an Employee Confidentiality Agreement regarding HIPPA. Additionally, the Board policy concerning student record confidentiality is published, maintained, and available to the teaching staff. Respondent conceded, as she must, that she was aware of the obligations as a behavioral specialist at Sunset to maintain the confidentiality of student educational and health records. Notwithstanding, Respondent credibly testified that, at the time, she believed the confidentiality requirements of said records would be maintained in the court proceeding. Principal Cottrell opined that Respondent's conduct impaired her effectiveness. His testimony on this point is set forth in full, as follows: Q. Does the fact that these records were disclosed by Ms. Finnk impair her effectiveness to you – her effectiveness as a teacher to you within the system? A. Within her capacity at Sunset School or in any capacity at Sunset School when I am the administrator responsible, absolutely. I need to know that each and every team member at Sunset, each and every employee is responsible and knowledgeable on confidentiality and follows it without question. The undersigned finds that the above-quoted testimony is insufficient to support a finding that Respondent's conduct impaired her effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 18th day of June, 2013.
The Issue The issue for determination at hearing was whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher at Van E. Blanton Elementary School (“Blanton”) by the School Board and held a professional services contract. She began working for the School District as a substitute teacher in 1994 and has been employed as a full-time teacher for 14 years. On April 20, 2016, Respondent was issued a Professional Responsibilities Memorandum regarding student discipline. The purpose of the memo was to remind Respondent of how to properly treat children who are misbehaving after she was observed sending two students to stand in the corner after blurting out answers. On or about April 25, 2016, Respondent hit a student with her hand on the student’s arm, leaving the student’s arm visibly red and welted. A summary of a conference-for-the-record from May 18, 2016, was admitted into evidence. Pedro Cedeno, the principal at Blanton for the past three years, stated that he considered the current incidents similar in nature to this prior incident from 2016. On May 19, 2016, Respondent was issued a written reprimand relating to the April 25, 2016, incident. On April 18, 2017, the Education Practices Commission (“EPC”) filed an Administrative Complaint against Respondent based on the April 25, 2016, incident under EPC Case No. 17-0457-RT. On December 14, 2017, a Final Order was entered in the EPC case, adopting the parties’ Settlement Agreement, which issued Respondent a letter of reprimand and placed her on one year’s probation. Throughout Respondent’s tenure with the School Board prior to the instant matter, the only discipline she received was the reprimand described above. Three incidents, occurring on March 8, 13, and May 23, 2019, respectively, gave rise to these proceedings. Respondent worked at Blanton as a first-grade teacher. On March 8, 2019, Mr. Cedeno was standing near the main office when he saw Respondent and her class coming in from the hallway. Mr. Cedeno saw Respondent pull a student, C.J., who was kneeling on the ground at the back of the line. Respondent said something to the student, but Mr. Cedeno could not hear it. Mr. Cedeno saw Respondent pull the student by the arm. He testified that Respondent was “pulling her to move her whole body over to the back of the class … it was more of a pull, which is what caught my attention.” Mr. Cedeno approached Respondent and asked, “What’s going on?” He also told Respondent that they cannot pull students like that. He advised Respondent it would be better to leave the child there and call for attention or assistance. Apparently, the video cameras were not working on March 8 because no video footage was available for Mr. Cedeno, Respondent, or the undersigned to review after the incident or at hearing. On March 13, 2019, Mr. Cedeno saw via video that Respondent had her students lined up as they were coming or going into the classroom. Mr. Cedeno observed Respondent grab and pull a student into the class. That caught his attention. It was not an appropriate way for Respondent to have handled the situation. Both the March 8 and 13, 2019, incidents involved C.J. The March 13, 2019, video showed that C.J. was moving slowly in the hallway while the rest of Respondent’s students were already in the classroom. Respondent waved at C.J. and said something to the effect of “let’s go.” When C.J. did not respond, Respondent went to C.J., took her by the arm, and walked her into the classroom. While the video does not show excessive force being used to pull C.J. up from the floor where she was tying her shoe, it did show more than Respondent reaching out her hand, then waiting for C.J. to take her hand to be led. There was a small amount of force involved in getting C.J. up and moving. Respondent testified she was not mad at C.J., but she was firm in telling C.J. she needed to get going and into the classroom. From the video, C.J. did not seem embarrassed and was not crying when she was physically urged up and into the classroom. The video does not evidence violence, anger, or aggression. It does evidence a teacher pulling a young student up from the floor and walking her briskly into the classroom. At hearing, however, C.J. testified credibly that she was both embarrassed and sad by the incident. Following the March 13, 2019, incident, Mr. Cedeno filed a personnel investigative form with the School District’s Office of Professional Standards. No action was taken to remove Respondent from her position or to impose any discipline. J.E., a student, testified regarding the May 23, 2019, incident. He said Respondent was his teacher during the prior school year. He watched the video of the incident and identified both himself and Respondent in the video. J.E. had asked Respondent if he could go to the bathroom. Respondent did not allow J.E. to use the bathroom at that time. Then, J.E. tried to get into the classroom to use the bathroom and Respondent pushed J.E. The video shows Respondent push J.E. J.E. fell and then got up. His leg was hurting and it made him feel mad. J.E., a large child for his age, appeared somewhat distracted while testifying, and his mother had to prompt him once or twice to pay attention to the questions being asked and to give audible answers. However, his recollection of the May 23, 2019, incident was clear. He admitted that he was acting up, which was confirmed by Respondent, but was “mad” at being pushed into the classroom where he landed on one of his classmates. He was only mildly injured and did not require first aid or medical care as a result of his fall. Respondent noted that J.E. was a disruptive student who is disobedient, bigger than the rest of the students in the class, and is known for pushing and bullying the other students. Respondent testified that on May 23, 2019, rather than entering the classroom when he was supposed to, J.E. doubled back, grabbed another student, and spun the student around, which caused that student to cry. Respondent was obviously frustrated by J.E.’s behavior and gave him a push into the room. J.E. bumped into his best friend, which sent the two of them sprawling onto the ground. According to Respondent, J.E. fell to the ground laughing and clowning around, after which they all sat down and started class. J.E. did not appear embarrassed or upset by the incident, Respondent testified. The May 23, 2019, incident was captured on video and was personally witnessed by a teacher, Alissa Bennett, who was coming down the hall with her class at the time. Ms. Bennett is a fifth-grade teacher at Blanton and was employed as such during the incidents giving rise to these proceedings. Ms. Bennett knows of Respondent but does not know Respondent personally. Ms. Bennett testified regarding the May 23, 2019, incident and reviewed the video of the incident during her testimony. On May 23, 2019, Ms. Bennett was walking her class to lunch. It was about 11:30 or 11:35 a.m. She came out of the stairwell and saw a big commotion in front of her. There was a lot of yelling and kids in the hallway. When Ms. Bennett walked closer, she saw Respondent push a student into the classroom. Ms. Bennett kept walking and heard one of her students exclaim, “[w]ow, that teacher just pushed that student.” Ms. Bennett said, “I was kinda like, oh, my God. Did that just happen? Did I just see that?” She recognized this as a serious incident. She took her students to lunch. Later that night, she told her boyfriend about the events she witnessed at school. She was a new teacher and was not sure what to do about it. Her boyfriend encouraged her to report the incident. The following day, on May 24, 2019, Ms. Bennett reported the incident via text to the counselor. She also spoke to Mr. Cedeno about what she saw. Mr. Cedeno acknowledged speaking with Ms. Bennett about the incident. He explained that Respondent could have avoided the situation by using a call button, an emergency button that immediately notifies the office, or she could have asked another person in the hallway for assistance. For example, there are always security and staff in the hallway, and they are present in the video evidence submitted. The security and other staff members have radio access. Mr. Cedeno testified that there was no excuse, based upon what he saw in the video, for Respondent to push J.E. The School Board and the United Teachers of Dade, the classroom teachers union, have agreed to be bound by the principle of progressive discipline, and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for ten days without pay and awarding her back pay from the date her employment was terminated, except for the ten days of suspension. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of December, 2020. COPIES FURNISHED: Cristina Rivera, Esquire Miami-Dade County School Board Office of the School Board Attorney 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Room 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent holds Certificate Number 227135, regular, valid through June 30, 1982, covering the areas of biology, science and social studies. Respondent received a bachelor's degree in history, zoology and education from Parson's College in 1967, and a Master of Science degree from the Florida Institute of Technology in 1980. During the 1976-77 school year, Respondent was employed as a science teacher at Nims Middle School in Tallahassee, Florida. Respondent, a licensed professional photographer, also worked with the photography club at Nims Middle School during the school years from 1975 through 1978. On or about May 30, 1977, while Respondent was employed as a science teacher at Nims Middle School, two students, Linda McKenzie and Linda Underwood, were excused from their regularly scheduled sixth period classes to go to Respondent's classroom to look at laboratory animals kept there. At all times material hereto, Respondent aid the two students mentioned above were the only occupants of the classroom. Respondent and the two students engaged in conversation, during which Respondent discussed taking photographs of the two students. As the two students began to leave the classroom, Respondent placed his hands on Linda Underwood's waist and "French-kissed" her. Ms. Underwood was shocked and embarrassed, and quickly left the classroom. The incident was not reported to Ms. Underwood's parents, but was reported to school officials by Ms. Underwood several days after the incident occurred. Prior to the above-described incident, Ms. Underwood had called Respondent on the telephone at his home, and had also written him letters. None of these letters were introduced into evidence in this proceeding. Ms. Underwood apparently also made several telephone calls to Respondent after the incident occurred. Neither the content of these telephone conversations nor any other evidence of record in this proceeding is sufficiently clear to demonstrate that Ms. Underwood was so biased against Respondent to have fabricated her testimony. Having observed the demeanor of the several witnesses testifying on this issue, and having considered their interest, if any, in the outcome of this proceeding, Ms. Underwood's version of the incident is accepted as persuasive. While Respondent was employed as a science teacher at Nims Middle School, he drove to the home of Mrs. Juanita Jackson accompanied by two Nims Middle School students, Carlotta Wolfe and Lori Taylor. The two students were dressed in either bathing suits or shorts, and rode in the front seat with Respondent. had offered the two students a ride when he observed them walking, and was asked by them to drive to the Jackson home. Respondent did not know the purpose of the visit to the Jackson home. One of the students apparently requested that Mrs. Jackson's daughter be allowed to get into the car with Respondent and the other students, but Mrs. Jackson refused to allow her daughter to do so. Although Mrs. Jackson testified that she observed Respondent's arm on the back of the seat while Carlotta Wolfe was seated next to him, there is insufficient evidence of record from which to conclude that any impropriety was intended by Respondent, or in fact occurred. Respondent was granted a leave of absence by the Leon County School Board for the 1979-80 school year, and was reassigned to Godby High School for the 1980-81 school year. On August 4, 1980, Respondent met with William J. Montford, principal of Godby High School, and other administrative personnel. During that meeting Respondent was specifically warned about inappropriate and improper comments and behavior directed toward students. During the 1980-81 school year Ms. Kelly Moore was one of Respondent's students. On one occasion when Ms. Moore was tardy to class and was in the process of signing a late sheet in compliance with school policy, Respondent told her to put her telephone number by her name "...in case I get horny one day." On another occasion, when Respondent inquired and was told that Ms. Moore worked in the lingerie department at Maas Brothers department store, he observed to Ms. Moore that he "...could really get into panties, especially yours." Each of these comments was made in Respondent's classroom, in the presence of other students, and for no appropriate reason. Respondent denies making these remarks, but it is specifically concluded that the testimony of Ms. Moore is more persuasive concerning these incidents. While employed as a teacher at Godby High School, Respondent engaged in a conversation with Dorothy Bryant, Yolanda Jenkins and Kendra Green, three of his students. During the course of this conversation, Respondent told these students that he would like to take them out and get something to drink and smoke with them. During the course of this conversation, Respondent either used or agreed to the use of the term "orgy" in connection with the above-described offer, and wrote a mathematical equation on the blackboard, and inquired of the students "How many times can one go into three?" During the 1980-81 school year at Godby High School, Traci Lingel was another of Respondent's female students. On one occasion when Ms. Lingel sought a pass to leave Respondent's classroom, Respondent remarked to her "Just because I'm your teacher and because I'm older than you doesn't mean that we can't go to bed together." On another occasion, Respondent remarked to Ms. Lingel that he had met her sister, also a student at Godby High School, and that he knew that it was her sister because she had "sexy eyes" just like Ms. Lingel. Further, Respondent observed to Ms. Lingel that he would award her an "A" in his course if she could arrange a date for him with her sister. On still another occasion, Respondent inquired of Ms. Lingel's boyfriend if Respondent could blow in Ms. Lingel's ear. On other occasions Respondent told two of his students, Debbie McCauley and Leeann Nelson, during class periods that he thought they had "nice legs." In addition, Respondent on one occasion told Ms. Nelson that he would like to go to bed with her. On several occasions during his tenure at Godby High School, Respondent related to various of his students that he was "hung over," had gotten drunk the preceding weekend and/or had smoked marijuana. On at least one other occasion, upon sending a male student to Respondent's vehicle to retrieve some items left there by Respondent, Respondent told the student that a bottle of liquor was under the seat in the truck, and the student could take a drink if he wished to do so. This latter remark was made in the presence of other students. Respondent spoke on the telephone with another of his students, Theresa Tran, about taking photographs of her. Respondent inquired of Ms. Tran concerning her favorite alcoholic beverages, and remarked to her that he could take her photographs and afterwards take her out for a drink. Respondent also on one occasion remarked to Traci Lingel, another of his students mentioned earlier in this order, that he and Ms. Lingel could get drunk or high and he could take her photographs. Respondent received a written reprimand dated February 10, 1981, from his principal, William J. Montford, concerning his improper conduct with female students. Respondent was again reprimanded by his principal by written reprimand dated March 17, 1981. On or about June 6, 1981, a presentation designed to inform high school students about the dangers of drug abuse was made in Respondent's classroom. A student attending a drug abuse program outside Godby High School participated in the program to share his negative experiences with drugs with other students. During a break in the program, Respondent engaged in a conversation in which the above-mentioned student and a representative of the Florida Alcohol and Drug Abuse Association participated. During the course of this conversation, Respondent related that he obtained high-quality cocaine through his girlfriend from the New York or Boston areas, and that the quality of drugs so obtained was better than could be obtained in the Tallahassee area. Respondent's remarks to female students were often made openly in a classroom setting so that the students who were the subject of the remarks were embarrassed before their peers and Respondent's predilection for making such remarks became common knowledge among his students. As a result, many of his students were uncomfortable attending his classes. Because of the frequently open and notorious nature of his conduct as hereinbefore related, Respondent's effectiveness as an instructional employee has been seriously reduced. Respondent generally denies that the incidents related above ever occurred. There is, accordingly, a sharp divergence in the various accounts of these activities as related by several of the witnesses. In resolving these testimonial discrepancies, the Hearing Officer observed the demeanor of the witnesses while testifying and considered the interests, if any, of these witnesses in the outcome of this proceeding in determining which of the various versions of these occurrences were the more credible. Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer during the course of this proceeding. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been rejected either as not having been supported by evidence of record or as being irrelevant to the issues involved in this proceeding.
Recommendation Pursuant to notice, the Division of Administrative Hearings, through its undersigned Hearing Officer, William E. Williams, held a public hearing in this cause on September 17 and 18, 1981, in Tallahassee, Florida.
The Issue The issue in this case is whether Roger C. Brennan (Respondent) should be suspended for five days without pay by the City of Clearwater (Petitioner) for an alleged violation of Rule 14, Sections 1(e) and (k), of the City's Civil Service Rules, based upon his failure to turn over tape recordings of interviews he conducted in late March, 1989, while investigating an employee under his supervision, and also based upon the contents of a memorandum he wrote on March 30, 1989, at the conclusion of this investigation. Through counsel, the Petitioner stipulated that it does not propose to discipline Respondent for the conclusion he reached in his investigation, and has dropped any charge of inefficiency against Respondent which had been brought under Rule 14, Section 1(b). Rather, the proposed discipline is based solely upon the Respondent's failure to turn over certain tape recordings made in the course of his investigations and also the language and phrasing he used to refer to a supervisor in his memorandum of March 30, 1989.
Findings Of Fact At all times material hereto, the Respondent has been employed by the Petitioner as a Utilities Credit Manager. His immediate supervisor is George Fasching, and at the time of the matters at issue in this case, his ultimate supervisor was Robert Brumback, to whom he reported through Fasching. Mark Tedder was an employee under Respondent's supervision. On March 23, 1989, Respondent was directed by Brumback to investigate an incident involving Tedder, who was alleged to have engaged in a prank on another employee and then to have lied to the Affirmative Action Officer, E. J. Robinson, about his part in the prank. Robinson had recommended to Brumback that disciplinary action be taken against Tedder. Thereupon, Brumback wrote a memo to Respondent on March 23, 1989, directing that he evaluate certain information about the Tedder incident which was provided to him along with the memo from Brumback, "make appropriate inquiries, and then recommend, through the chain of command to Mr. Fasching, the action you feel should be taken in this matter." Brumback directed Respondent to respond to this memo by March 30, 1989. Because Brumback had received a complaint from Helga Graf that Respondent was conducting a broad investigation of the Utilities Department, not limited to the Tedder incident, and was tape recording interviews, Brumback issued a clarifying memo to Respondent on March 28, 1989, stating: The purpose of my March 23rd memo was not to have you look into anything outside the scope of your Credit Collection Section. The purpose of my memo was to have you look into Mark Tedder's action with Pat Meri that was alleged to be a prank, and the fact that in an interview with E. J. (Robinson), Mark denied having any part in the prank. All I want you to do is to look into the incident between Mark Tedder and Pat Meri and Mark's interaction with E. J. Robinson. Based upon your assessment of that situation and the fact that Mark Tedder denied to E. J. Robinson that he participated in the prank, I want you to recommend to George Fasching the action you deem appropriate with regard to Mark Tedder's action and conduct.. Based upon Respondent's testimony and demeanor at hearing, it is found that he was upset and angered by this clarifying memo. He felt his investigation was being unduly restricted and impeded by Brumback. Respondent called Brumback on the telephone to find out why he was "putting the blinders on", and to voice objection. Brumback directed him to stay within the authorized scope of the investigation as set forth in his memoranda, and to obtain his approval on a case by case basis before conducting further interviews. At the time of this clarifying memo of March 28, 1989, Respondent had already interviewed Mark Tedder, Pat Meri, and a third employee by the name of McCann. He had tape recorded the interviews of Meri and McCann, but not his interview of Tedder. Respondent conducted no further interviews after receiving Brumback's clarifying memo. On March 30, 1989, Respondent wrote a memorandum to his supervisor, George Fasching, which contained his recommendation that no action be taken against Tedder, and which stated, in pertinent part: it is apparent to me that Mr. Brumback is pursuing a personal vendetta against Mr. Tedder. . committed a . By Mr. Brumback inferring that Mr. Tedder a "crime", he has laid a foundation that this is much more serious infraction than it truly is. . Mr. nature violated Assistant who In making appropriate inquiries, as directed by Brumback, information became available to me that lead me to believe that similar offenses of and scope have occurred without any disciplinary action. . . These offenses occur and are at all levels from the Clerk Typist to the Public Works Director of Utilities (Brumback), has been observed a time or two to tell distasteful (to say the least) joke, during working hours. . In the two and one half (2 1/2) hours of tape recorded conversations I had with various City employees, it is apparent to me that there is a wide spread cover up, . . . of infractions at all levels . . . . But, to choose one employee, as it has been done to this employee on another occasion, in my opinion would be OUTRIGHT RETALIATION. (Underlined Emphasis Supplied.) Respondent's reference in his March 30 memo to Brumback inferring that Tedder had committed a crime resulted from Respondent's interpretation of a question which Brumback asked of Pat Meri, as reflected in a transcript of an interview which Brumback had with Meri on March 16, 1989, concerning the alleged prank. Brumback provided Respondent with this transcript on March 23, 1989, along with his initial memo directing Respondent to investigate this prank. As shown in the transcript, Brumback asked, "Mark Tedder was the perpetrator of the prank?" Respondent contends that by his use of the word "perpetrator" Brumback intended the inference that Tedder had committed a crime, citing to the definition of this term in Webster's Dictionary and Black's Law Dictionary. There is no evidence in the record to support Respondent's contention that Brumback was accusing Tedder of criminal conduct by his use of the word "perpetrator", or that Brumback has any knowledge of the technical definition of this term, as reflected in Black's Law Dictionary. Webster's New Collegiate Dictionary defines "perpetrate" as mearing "to bring about or carry out (as a crime)", and The American Heritage Dictionary of the English Language defines this term to mean "to be guilty of; commit; to carry out; perform", and uses the term in the following alternate ways: "perpetrate a crime; perpetrate a practical joke". Respondent simply ascribed to the word used by Brumback the meaning and inference which he preferred, and not the alternate, acceptable meaning which does not have any connotation of criminal activity. Despite his concern for, and his insistence upon the precise use of language in memoranda, in his memo of March 30 Respondent accused Brumback of "pursuing a personal vendetta against Mr. Tedder." In contrast to the inference which Respondent drew from Brumback's use of the word perpetrator, Respondent used the specific term "vendetta" in his memo, and no inference need be drawn from the use of this word to conclude that Respondent was accusing Brumback of wrongful conduct. At hearing, Respondent defined the word "vendetta" as meaning "unreasonable and without justification". However, Webster's and The American Heritage Dictionary, as well as Roget's Thesaurus, all define this term to mean "a prolonged feud marked by bitter hostility", "a hereditary blood feud between two families, perpetuated by retaliatory acts of revenge", and "any act or attitude motivated by vengeance". There is no evidence in the record which would support Respondent's assertion that Brumback was pursuing a personal vendetta against Tedder, as this term is commonly used and understood. The use of the term "vendetta" by the Respondent in his memo of March 30, with its intended effect of accusing Brumback of wrongful conduct, constitutes the use of offensive conduct and language toward his supervisor. This is not the only example in his memo of March 30, of the use of offensive language by Respondent. In all capital letters, he states that disciplining Tedder would amount to "OUTRIGHT RETALIATION". While this certainly has a dramatic effect, it is also needlessly offensive when taken in the context of Respondent's charge that there is a "wide spread cover up of infractions at all levels." Respondent had been directed to simply look into a prank in which Tedder was alleged to have been involved, and to recommend what, if any, discipline would be appropriate. Instead, he concluded that Brumback was pursuing a "personal vendetta" against Tedder, that Brumback had accused Tedder of criminal activity, that there was a widesperead cover up, and that disciplining Tedder would be an act of "OUTRIGHT RETALIATION". The entire tone and language used in his memo of March 30, constitute offensive conduct and language toward his supervisor, Robert M. Brumback. Respondent failed to obey Brumback's lawful and reasonable direction that Respondent limit himself to an inquiry into the prank in which Tedder was alleged to have been involved, asset forth in Brumback's memoranda of March 23 and 28, as well as in his telephone conversation with Respondent on March 28. This conduct constitutes insubordination. Even after the limited scope of his investigation was clarified, and after he clearly understood this limited scope, Respondent included accusations against Brumback and the Utilities Department in his March 30 memo which are totally unrelated to the alleged prank he was supposed to be looking into. It is undisputed that Respondent tape recorded two interviews of City employees he conducted during his investigation, and that he has failed to turn those tape recordings over to his supervisor. Instead, Respondent claims he sent the tapes to the Equal Employment Opportunity Commission, but the Commission has no record of ever having received such tapes. He claims he did this to avoid any possibility of someone tampering with this evidence. Respondent claims he sent the tapes in the regular mail, and did not request a return receipt. He did not seek or receive authorization to send these tapes to the Commission. After he made his charge of a widespread cover up in his March 30 memo, he was asked to turn over the tape recordings made in the course of his investigation so that the basis of this charge could be understood and explored, if necessary. Respondent claims he has been unable to comply with this request because he no longer has the tapes. Thus, Respondent has disposed of materials, without authorization, which he collected in the course of an investigation he was directed to perform by his supervisor, and his action has resulted in this material either being lost or destroyed. While he was not specifically instructed by Brumback or anyone else to preserve and turn over all tape recordings made during his investigation, there was no way that Brumback could have anticipated that Respondent would have engaged in a course of conduct which included initiating a far reaching investigation of the Utilities Department, with tape recorded interviews. It is reasonable to assume that a supervisor, such as Respondent, who is directed to look into allegations about an employee under his supervision would be expected to retain all information and materials gathered in the course of his investigation for possible review by others. Respondent's handling of these tapes was careless and unreasonable. Nevertheless, this conduct does not constitute insubordination which is the "refusal to perform work assigned or failure to comply with written or verbal instructions of the supervisory force", as that term is defined in the Petitioner's Guidelines for Disciplinary Action. He was given no written or verbal instructions concerning materials gathered in the course of his investigation, although it is reasonable to expect that a supervisor, such as Respondent, would not deal with such materials so carelessly and would retain them for further review, if necessary. Respondent's explanation for his action, that he was concerned this evidence would be destroyed, is unsubstantiated. Rule 14, Sections 1(e) and (k) provide that any employee of the City of Clearwater may be disciplined if he has: been offensive in his conduct or language toward his fellow employees, City officers, or the public. violated any lawful and reasonable official failure regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department. . . Respondent urges, based upon a listing of all prior disciplinary actions taken against City employee's during1987 through 1989, that the action taken against him was excessive and not consistent with discipline imposed in other cases. Some of the cases listed reflect disciplinary action for violating Rule 14, Section 1(k), Level 4, which is consistent with the action taken in this case, and some of the listed cases appear to reflect lesser or greater discipline. However, each case must be dealt with individually based upon the specific facts and circumstances involved in that case. The summaries upon which Respondent relies contain no details about the facts involved in each case, and therefore, these summaries do not constitute either competent or substantial evidence that the penalty in this case is inappropriate, because it cannot be determined if the facts in this case are at all similar to the facts in any of these other cases. The Petitioner's Guidelines for Disciplinary Action applicable in this case classify this as a Level 4 Offense for which a three to five day suspension, and forth disciplinary points, is recommended for the first offense. Rule 14, Section 2 describes suspensions as being without pay. More severe discipline may be imposed "if it is felt necessary in the best interest of the department and/or City." (See City Exhibit 2, page 1 of attachment.) The discipline which Petitioner has imposed in this case against Respondent, a five day suspension without pay, is within the permissible range of discipline for this offense, and is reasonable under the circumstances.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order affirming the disciplinary action taken against Respondent, based upon the facts found herein, of a five day suspension without pay, and the assessment of 40 disciplinary points. DONE AND ENTERED this 9 day of February, 1990 in Tallahassee, Florida. Hearings Hearings DONALD D. CONN Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative this 9 day of February, 1990. COPIES FURNISHED: Deborah S. Crumbley, Esquire P. O. Box 639 Tampa, FL 33601 Margot Pequinot, Esquire P. O. Box 1669 Clearwater, FL 34617 M. A. Galbraith, Jr., Esquire City Attorney P. O. Box 4748 Clearwater, FL 34618
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), if so, what discipline should be imposed.
Findings Of Fact Ms. Jardas holds Florida Educator’s Certificate No. 1072218, covering the area of social science, which is valid through June 30, 2012. She graduated from college in December 2006. At all times material to this proceeding, Ms. Jardas was employed as a social studies teacher at Giunta Middle School (Giunta) in the Hillsborough County School District (School District). She began her employment at Giunta as a long-term substitute teacher in January 2007. In August 2007, she was hired as an annual contract teacher. Her annual contract was renewed for a second year. During the 2008-2009 school year, M.B. was a student in Ms. Jardas’ sixth-period geography class. In September or October 2008, M.B. approached Ms. Jardas for help with her school work and for guidance regarding M.B.’s problems in school attendance and problems at home. M.B. would stay after class about once a week and talk to Ms. Jardas in the classroom about M.B.’s problems. Other teachers were concerned about M.B.’s academic behavior and had discussed the situation with Ms. Jardas. Both M.B. and Ms. Jardas are lesbians. In November 2008, M.B. told Ms. Jardas that she wanted to have a romantic relationship with Ms. Jardas. Ms. Jardas told M.B. that she could not have a relationship with M.B. because she was a teacher, and M.B. was a student, and such a relationship would be inappropriate. Ms. Jardas did not report to the administrative staff at Giunta that M.B. had approached her about having a romantic relationship. Ms. Jardas was involved in the mentoring program at Giunta, where specific students would be assigned to specific teachers who would provide guidance to the students. M.B. was not part of the mentoring program. The School District had policies with respect to teachers meeting students off the campus during non-school hours. The general manager of the School District’s professional standards office explained the policies as follows: Teachers do not meet with students off campus, however, that is not done and it is not approved to do so without the knowledge of the principal, who is the responsible party at the school site, and many times, that involves parents’ permission, sometimes written permission, for that off-site visitation or interaction with one another. It is always related to either a curriculum- related instructional program, something to do with the academic focus for children. Even in a mentoring situation, there are guidelines as to how you meet with children and how you do not meet with children. It is never approved for you to meet alone with a student or to meet outside of school hours without it being directly related to some group activity or activity that has been approved by the district or the principal. Katie Brees (Ms. Brees) was at one time a friend of M.B.’s family. During the 2008-2009 school year, M.B. lived at Ms. Brees’ home. Sometime in November or December 2008, Ms. Brees sent a text message to Ms. Jardas, stating that M.B. had a problem and needed to talk to Ms. Jardas. Ms. Jardas had not given M.B. her telephone number; however, Ms. Jardas had called M.B.’s grandmother to discuss M.B.’s grades, and M.B. had gotten Ms. Jardas’ number from her grandmother’s telephone. At the time that Ms. Jardas received the telephone message from Ms. Brees, Ms. Jardas was at work at her second job at CVS Pharmacy, where she worked from 4:30 p.m. to 10:00 p.m. Ms. Jardas told Ms. Brees that she was at work and that, if it was an emergency, Ms. Brees and M.B. could come to the pharmacy. Ms. Brees and M.B. did go to the pharmacy around 8:00 p.m. They remained in the car. One of Ms. Jardas’ job responsibilities was to empty the trash containers and take them to a dumpster outside the building. When Ms. Jardas went out to empty the trash, she would talk to M.B. through the car window about M.B.’s problems. Ms. Jardas told M.B. that she could not keep coming to the pharmacy to talk to Ms. Jardas. Ms. Jardas did not report to Giunta administration that M.B. had come to the pharmacy to see her. Sometime in February 2009, Ms. Jardas got another text message from Ms. Brees, who said that M.B. had been cutting herself. Mr. Jardas, who was at work at the pharmacy, said that she could not leave work, but that she would meet them after work. Ms. Brees told Ms. Jardas to meet them at some property, which was owned by Ms. Brees’ brother. The location was dark and secluded. Ms. Brees parked her car behind Ms. Jardas’ car, and M.B. got out and went to sit with Ms. Jardas on the hood of Ms. Jardas’ car. Ms. Brees remained in her car. It was cold, and Ms. Jardas got a blanket from the trunk of her car. Ms. Jardas and M.B. sat underneath the blanket and talked for several hours. M.B. tried to get closer to Ms. Jardas, but Ms. Jardas would not allow her to do so. Ms. Jardas did not report her encounter with M.B. at the property of Ms. Brees’ brother to the Giunta administration. In February or early March 2009, Ms. Jardas received another text message from Ms. Brees, asking Mr. Jardas to meet with M.B. at Ms. Brees’ house. M.B. had been absent from school a lot. Ms. Jardas was again at work and told Ms. Brees that she would meet them after work. Ms. Jardas arrived at Ms. Brees’ home around 10:30 p.m. and went to the backyard. M.B. came out, and she and Ms. Jardas sat on the patio. Ms. Brees remained in the house. Around one a.m. or two a.m. when Ms. Brees went to sleep, M.B. and Ms. Jardas were still on the patio. M.B. tried to kiss Ms. Jardas, but Ms. Jardas rebuffed M.B.’s advances. Again, Ms. Jardas did not report her meeting with M.B. to the administration at Giunta. Ms. Jardas had made it clear to M.B. that she did not want to have a romantic relationship with M.B. Sometime in March 2009, M.B. began sending text messages to Ms. Jardas, saying that she hated Ms. Jardas and could not understand why Ms. Jardas did not want to have a relationship with her. Ms. Jardas had her telephone company block calls coming from M.B.’s telephone number. On March 16, 2007, Ms. Jardas received a photograph on her telephone which showed the nude upper torso of M.B. The photograph came from a telephone number unknown to Ms. Jardas. Ms. Jardas deleted the photograph and had her telephone company block the number from which the photograph was sent. M.B. was angry and upset with Ms. Jardas because Ms. Jardas did not want to have a romantic relationship and was trying to break contact with M.B. by blocking M.B.’s telephone number. M.B. told some of her friends that she and Ms. Jardas had been dating. The friends advised the school resource officer that M.B. and Ms. Jardas were supposedly having a relationship. On March 17, 2009, when M.B. was first questioned by a sheriff’s deputy about any relationship with Ms. Jardas, M.B. said that Ms. Jardas was her mentor and had been helping her with problems at home. M.B. advised that she was in love with Ms. Jardas, but Ms. Jardas said that she would have to stop seeing M.B. and would refer her to a guidance counselor. M.B. told the deputy that no inappropriate touching had taken place. On March 18, 2009, M.B. was again interviewed by personnel from the sheriff’s office. At this interview, M.B. said that she had met Ms. Jardas at the property of Ms. Brees’ brother and at Ms. Brees’ home. M.B. told the officer that they had kissed and hugged each other; that Ms. Jardas had put her hand down M.B.’s pants and rubbed M.B.’s vagina; that Ms. Jardas asked M.B. to play with herself, and M.B. complied; and that Ms. Jardas had said that she wanted to be deep inside M.B. At the final hearing, M.B. recanted her second interview with the sheriff’s deputy and stated that there had been no inappropriate touching by Ms. Jardas and that she had lied because she was mad at Ms. Jardas because Ms. Jardas did not want to be with her and would not give her a chance. M.B.’s testimony that there had been no inappropriate touching is credited. After the school resource officer became involved, there were rumors around Giunta concerning the alleged relationship between Ms. Jardas and M.B. The School District became involved and placed Ms. Jardas on administrative leave with pay, pending the outcome of the investigation. No criminal charges were filed against Ms. Jardas. The School District decided not to renew Ms. Jardas’ contract for the 2009-2010 school year. On March 27, 2009, prior to being formally advised of that decision, Ms. Jardas resigned her position with the School District, citing personal reasons. The School District allowed the resignation date to be the last day of school, which resulted in Ms. Jardas’ receiving pay to the end of contract. Ms. Jardas was not allowed to continue to teach in the School District. Ms. Jardas is currently teaching in New York. Ms. Jardas was aware that she should have reported her meetings with M.B. to the school administration and that she should have reported to the school administration that M.B. wanted to have a romantic relationship with her. Ms. Jardas explained her rationale for not reporting the situation to higher authorities as follows: I thought it was just like a school-kid crush, I thought nothing was going to develop from it, I thought that I could control the situation. She [M.B.] trusted in me, she believed in me, she sought me out. I didn’t want to, you know, be responsible for anything that she could do to herself, because I was aware that she was [a] cutter and that she would physically, you know, hurt herself, and I didn’t want that on my conscience, and she trusted me, and I didn’t want her to feel like I ratted her out by going to speak to, like a guidance counselor or my principal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Jardas did not violate Subsection 1012.795(1)(d), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(e) and 6B-1.006(3)(h); finding that Ms. Jardas did violate Subsections 1012.795(1)(g) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a); and suspending her educator’s certificate for one month followed by probation for one year. DONE AND ENTERED this 16th day of August, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2010.
