The Issue Did Petitioner, Gregory K. Adkins, as Superintendent for the Board of the School District of Lee County, Florida (Superintendent), prove just cause to terminate the employment of Respondent, Orlando Torres?
Findings Of Fact The Superintendent, on behalf of the School Board of Lee County (Board), is responsible for hiring, overseeing, and terminating, all employees in the school district. At all times material to this case, the Board employed Mr. Torres as a security specialist at East Lee County High School (East Lee). Mr. Torres also sometimes served as an assistant coach and/or substitute athletic trainer. Mr. Torres has worked for the Board since August 5, 2011. For the 2011 through 2015 school years Mr. Torres’ received a final Performance Evaluation with a score of “Effective” in all areas assessed. The "Manager Comments" on Mr. Torres' Final Performance Evaluations consisted of the following: "Mr. Torres is an integral part of the MLE [Mirror Lakes Elementary] team. He has been a great addition to our staff [2014-2015 Evaluation]”; "Mr. Torres is a very valuable asset and is well respected and supported as an integral part of the MLE team [2013-2014 Evaluation]"; "Orlando performs various duties at East: security and coaching. He has done a good job with both. Orlando was accepting of taking on the night security position until a candidate was hired [2012-2013 Evaluation]"; and "Orlando is a team player and is always willing to go above and beyond to help staff and students [2011-2012 Evaluation]." Mr. Torres is a member of SPALC and was a member during all periods relevant to this matter. On February 4, 2016, the Board’s Department of Professional Standards and Equity (PS&E) received reports that on several occasions Mr. Torres made inappropriate comments and sexual remarks in the presence of or to female high school students. The comments included suggestions that Mr. Torres was interested in sex with the students. The comments caused the students extreme discomfort and embarrassment and created an inhospitable learning environment. The Board investigated. The information it collected caused the Board to terminate Mr. Torres’ employment. PS&E Coordinator, Andy Brown, conducted an investigation that included interviews of several students and of Mr. Torres. When Mr. Torres met Mr. Brown for his interview, Mr. Torres did not know the reason for the interview. Mr. Brown advised Mr. Torres that he was the subject of an investigation and asked him if he knew what it was about. Mr. Torres said: “When I meet with a female, I always have another female present.” This was not true. Mr. Torres’ spontaneous and dishonest statement in response to simply being asked if he knew what the investigation was about is persuasive evidence that he had improper conversations with female students and is a contributing factor to concluding that his testimony denying the charges is not credible. In November and December of 2015, and January 2016, Mr. Torres made several sexually charged, inappropriate comments to students. Five of the incidents involved N.M., who was an eleventh grade student at the time. N.M.’s mother worked at the school. Consequently, N.M. stayed at school after classes until her mother left work. N.M.’s mother arranged for N.M. to assist Mr. Torres in his training tasks after school. This is how she met Mr. Torres. The arrangement lasted about a week. Around November 2015, Mr. Torres gave N.M. a “high-five.” He prolonged the contact by grabbing her hand and intertwining his fingers with hers. In a separate incident, while giving N.M. a “bandaid” for a scratch, Mr. Torres asked her if she would ever get involved with a married man. She said no and walked away. On another occasion, N.M. encountered Mr. Torres while she was walking to lunch. N.M. was wearing what she described as a “burgundy semi-see-through” shirt. Mr. Torres told her to cover up her “goodies” or her “girls,” referring to her breasts, so nobody else could see them. N.M.’s testimony used the word “girls” while her statement in February 2016 said “goodies.” This minor discrepancy is understandable given the passage of time and the stresses of an interview and testimony. On yet another occasion, Mr. Torres remarked in Spanish, when N.M. bent down, “I like ass.” Mr. Torres spoke to N.M. after she had been called to the school office to provide a statement about a conflict that Mr. Torres had with another student. When he learned the purpose of the request for a statement from N.M., Mr. Torres said, “I thought I was gonna get in trouble for flirting with you; thank god we didn’t take it to second base.” In early February, N.M. was walking with her then- friend S.S., when Mr. Torres exited a room and saw them. He said “you look delic . . ., beautiful,” to N.M., shifting from “delicious” to “beautiful” when he noticed S.S. Mr. Torres also made a comment about wishing N.M. was 18. Another Security Specialist, Russell Barrs, who N.M. considered a friend, overheard bits of a conversation between N.M. and S.S. about the encounter. He asked N.M. about it. She replied with generalities A day or two later N.M. met with Mr. Barrs and provided complete information about Mr. Torres’ comments to her. Mr. Barrs reported this to Assistant Principal Edward Matthews. Mr. Matthews launched the investigation. It is noteworthy that S.S., whose friendship with N.M. ended, still testified to the same events as N.M. did. The two had a falling out sometime in 2016. The testimony of S.S. was not a matter of loyal support for a friend. In fact, the tone and body language of both students gave the distinct impression that the end of the friendship was not pleasant. N.M.’s mother had just started working at the school. N.M. did not immediately report Mr. Torres’ advances to her mother or other adults. When she did report them, her initial statements were incomplete and vague. She just told her mother she was not comfortable being in the room with Mr. Torres. She also told her mother that Mr. Torres “says things.” Later, after speaking to Mr. Barrs, N.M. provided her mother a complete description of the comments. After classes, Mr. Torres spent a good deal of time in the training room where first aid supplies and ice are stored for student-athletes. The training room was divided into two smaller rooms separated by a door that was usually shut. One room contained the ice machine, other equipment, and supplies. The other part of the room served as an office for Mr. Torres. Students, including N.M. and C.P., assisted or visited with Mr. Torres in the training room at times. C.P. was a female student who served as one of the managers for the girls’ basketball team. Once while observing her prepare an ice pack by sucking air out of it, Mr. Torres said words to the effect of “like how you suck a boy’s dick.” C.P. was a ninth grader at the time. Mr. Torres also told her that he would like to marry her when she turned 18. Another time, Mr. Torres tried to hug C.P. Mr. Torres also told C.P. that they should not talk in the hall because the security video cameras may record them. Another time, after overhearing a discussion in Spanish by several female students about sexual activity, Mr. Torres told C.P. that if he ever had sex with her he would break her. Two or three times Mr. Torres told C.P. that she was beautiful and he wanted to marry her after she graduated. The comments made C.P. extremely uncomfortable and unsure of what to do. She was scared. She quit her position as manager to avoid contact with Mr. Torres. Like N.M., C.P. was slow to report the comments to an adult. When she first told her step-mother she described Mr. Torres’ comments as coming from a substitute teacher. C.P. was scared and did not want to get involved. When she did, the details understandably came out in bits and pieces. Mr. Torres’ improper familiarity with students N.M. and C.P. and his sexually charged comments were frequent and varied. They were improper and detrimental to the emotional and mental health of the students. The crux of Mr. Torres’ defense is that none of the testimony about his actions is true. His testimony is not as credible as that of the students who testified to his offenses. One reason, mentioned earlier, is Mr. Torres’ spontaneous statement when Mr. Brown met him for the interview that he was never alone with a female. It manifests guilt and anxiousness that would not be present without his being aware of his improper behavior. Another reason is that the testimony of the students is sufficiently consistent to provide credibility. And N.M., C.P., and S.S. all made reports within a few months of Mr. Torres’ comments. A third reason is that N.M.’s testimony was supported by S.S. at hearing even though their earlier friendship had ended. A fourth reason is that there is no evidence of a motive for N.M., S.S., and C.P to fabricate their reports. For the time period when Mr. Torres made the comment to C.P. about “breaking her,” several students offered differing testimony about who was in the room when and whether Mr. Torres was giving a student instruction on a trumpet. This testimony is not sufficient to impeach the credibility of N.M. and C.P. Those were not the students to whom the offending remarks were made. The details of that day would not have been noteworthy to them at the time. Similarly, given the nature of Mr. Torres’ comments, the details of exactly who was present when would have been secondary to N.M. and C.P. Finally, Mr. Torres made one particularly transparent and deliberate effort to manipulate the truth during cross-examination that undermines relying on Mr. Torres’ testimony. Early in the hearing, in Mr. Torres’ presence, the Board attempted to enter evidence that during prior employment as a detention officer with the Sheriff of Lee County, Mr. Torres reacted to teasing by other officers by drawing his service pistol. The objection to the evidence was sustained. Later Mr. Torres testified that the testimony against him was not credible because he would never take such risks at a school where his wife was also employed, his children were students, and N.M.’s mother was employed. This testimony opened the door to the pistol drawing incident as evidence of Mr. Torres taking risky actions at work. The exchange about the incident, starting at page 329 of Volume II of the Transcript, follows: Q: But you engaged in risky behavior in your two law enforcement jobs prior, did you not? A: I don’t consider that risky behavior. Q: Well, you don’t consider pulling your service revolver as risky behavior? [objection and ruling] A: I have never carried a revolver. Q: Your service weapon, sir? ALJ: You said you never carried a revolver. Have you ever carried a pistol? A: Yes sir. ALJ: Next question. Q: Would you consider pulling your service pistol in an inappropriate manner risky behavior, sir? A: Yes, sir. Mr. Torres testified with full knowledge from the earlier attempt to introduce evidence of the incident to what the question referred. His answer was hair-splitting at best and demonstrated a willingness to shade, if not evade, the truth that significantly undermines his credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Respondent, Orlando Torres, and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 31st day of October, 2016, 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 31st day of October, 2016.
The Issue Whether Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, whether the two-day unpaid suspension imposed by Petitioner should be upheld.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Petitioner is the duly-constituted school board of Broward County, Florida. It is charged with the duty to provide a public education to the students of Broward County and to establish policies and programs consistent with state law and rules, necessary for the efficient operation and general improvement of the Broward County district school system. Respondent was employed by Petitioner as a physical education teacher at West Broward High School during the 2014- 2015 school year. March 19, 2015, Incident On March 19, 2015, Respondent was teaching a ninth-grade health and physical fitness class known as HOPE, during the seventh period of the school day. March 19, 2015, was the day before the students were going to be released for Spring Break. As was the common practice, many of the students in his class opted to attend a "pep rally" being conducted on campus, which began shortly after his HOPE class started. After the students departed for the "pep rally," approximately 12 students remained in the class under Respondent's supervision. The class remained in session, and Respondent showed the remaining class students an educational video. As the video played, the lights were dimmed. Respondent was at the front of the class sitting behind his desk in a chair that reclined. During the video, one of the students, J.R., observed Respondent leaning back, reclined in his chair with his eyes fully closed. Respondent's chair was turned partially away from the class. J.R.'s desk was approximately 15 to 20 feet from Respondent's desk. J.R. observed Respondent in this posture for close to ten minutes. At some point, J.R. got up from his desk and approached Respondent to hand in some paperwork. While standing directly in front of Respondent's desk, he took a photograph of Respondent in this posture. See Pet. Ex. 5. When J.R. approached Respondent's desk and stood in front of it, Respondent did not wake up, stir, or acknowledge J.R.'s presence or take the papers from him. Notably, J.R. heard Respondent lightly snoring during the time he was asleep.1/ J.R. shared this photograph with several friends on a social media site. One of his friends, J.L., who was also attending the same class, saved the photograph by taking a screen shot of it.2/ While all of this occurred, J.L. was sitting in close proximity to J.R. J.L. also noticed that Respondent was sleeping and reclined in his chair with his eyes closed. During the period of time that Respondent was in this posture and slumber, he was not properly attending to his duties as a teacher and was not properly supervising the students in his class. While it is not necessary to recount in detail, the record reflects that Respondent had been counseled, written up, or warned about not properly supervising or monitoring students in other classes during the years preceding this incident. These various memos and written or verbal warnings constituted sufficient directives or orders by supervisors, the violation(s) of which constituted insubordination. See generally Pet. Ex. 18, composed of multiple subparts and pages. Based on the persuasive and credible evidence, it should have been obvious to Respondent on March 19, 2015, that this type of conduct was strictly prohibited, in violation of School Board rules and regulations, and exposed him to progressively stricter discipline. Sometime later, J.L. met with the assistant principal, Richard Gonzalez, to complain about his grades in Respondent's class. It was during this meeting that Gonzalez was shown the picture that J.R. had taken on March 19, 2015. After conducting an investigation, Gonzalez and the principal, Teresa Hall, met with Respondent and his union representative during a pre-determination meeting to discuss the incident and provide Respondent with an opportunity to respond. Initially, and before being shown the picture, Respondent denied that he had been sleeping in the HOPE class. However, after being shown the picture, Petitioner's Exhibit 5, he asserted that the picture was not in a classroom. He went on to add that it "would not be like me to do that." He lamented that he was going through marital problems and was on medication. He told Hall and Gonzalez that he was embarrassed. Respondent cried during the meeting. He also told Hall and Gonzalez that he had never done this before and could not believe that it happened. He appeared very embarrassed. He told both of them, as he handed back the photograph, "I can't believe this happened." The undersigned concludes that despite the lack of a direct or forthright admission that he had been caught sleeping, Respondent acknowledged through his verbal and physical responses, demeanor, and body language that he had been inattentive, sleeping, and caught in this posture in violation of School Board rules and policies. Further, it is clear that Petitioner's Exhibits 5 and 6 alone show Respondent fully asleep and/or in a very deep state of slumber and clearly inattentive to his duties as a supervising teacher for the HOPE class on March 19, 2015. During the hearing, Respondent was questioned by his attorney about the picture that appeared to show that he was sleeping. He denied closing his eyes. He acknowledged that the picture was of him, but asserted, "I'm not sleeping." Rather, he deflected the point of the inquiry and stated "I've never slept, especially with students in class." Inexplicably, he left it at that and offered no credible explanation concerning what the picture showed or depicted. At some point after this incident, Respondent approached the school resource officer, John Sammarco. They discussed the photo of Respondent taken by J.R. which purportedly showed him sleeping. He asked the officer to talk to the student and have J.R. retract the photograph from the internet and write a statement saying that Respondent was not sleeping. Needless to say, Sammarco refused to assist Respondent in this manner and, instead, immediately reported this meeting to Hall and Gonzalez. Shortly thereafter, Respondent came back to the officer and apologized to him for "putting him [sic] in that position." March 30, 2015, Incident The school principal, Hall, was conducting a routine walk-through of the West Broward High School campus with her assistant principal, Gonzalez. As they passed Respondent's classroom, they noticed that the lights were dimmed. Interested to know what was happening, they entered the class room by using the back door. The classroom was dimly lit and full of students. They walked up the right side of the classroom along the wall from the rear of the classroom. Respondent was seated at his desk, turned away from the class, and facing more in the direction of the video screen that was located at the front of the class. Respondent was leaning back in a relaxed posture and had his cell phone in his hand. He was not facing the class or watching the students. From her vantage point, several feet behind and to the right of Respondent, Hall could see that Respondent was looking at pictures of females on his cell phone and scrolling through them with his finger. He would occasionally glance up at the video being shown on the screen and then glance back down at his cell phone. Hall stood quietly behind Respondent observing this activity for approximately one to two minutes. Respondent never acknowledged her presence, nor did he turn and notice that the school principal was in the room with Gonzalez. Gonzalez was slightly behind Hall. He could also tell that Respondent had his cell phone in his hand, but was not able to see what he was looking at. Nonetheless, Gonzalez confirmed that Respondent did not acknowledge their presence or even appear to know that they were in the classroom.3/ When asked during the administrative hearing about this particular incident, Respondent testified that he knew they were there but that he was not required to acknowledge their presence. He said he did look at his cell phone but does not recall what pictures he was looking at. The pictures may have been from Facebook or some other social media. When asked if it is appropriate to look at social media in a classroom of students, with the school's principal present, he stated that "I did it, but I didn't think nothing of it." Based on the more credible and persuasive evidence, the undersigned finds that Respondent was not aware that Hall and Gonzalez were in the room observing his actions, nor was he properly supervising his students during Hall's visit. Further, these separate incidents on March 19 and 30, 2015, constituted: (1) a lack of proper supervision of his classes; (2) willful neglect of his duties as a teacher; and (3) insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order imposing its intended penalty of a two-day, unpaid suspension. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2016.
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
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 finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 30th day of April, 2007.
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue The issue to be determined in this case is whether Petitioner, Miami-Dade County School Board (School Board), had just cause to suspend Respondent, Harcourt I. Clark, for ten days without pay.
Findings Of Fact Based on the stipulations of the parties, and an evaluation of the testimony of witnesses and documentary evidence presented, the following facts are found: At all times material to this proceeding, Respondent was employed by the School Board as a school teacher within the School District of Miami-Dade County (School District). Respondent was a teacher in the School District, since approximately August of 1987 at various schools within the county, and also worked as a coach for 15 years of that tenure. At the time of the incident alleged in the Notice of Specific Charges, Respondent was teaching at Shenandoah Middle School. Respondent has a disciplinary history with the School Board. In 1995 (23 years ago), Respondent was the subject of an administrative review at the individual school level, as a result of a complaint that alleged, in part, that Respondent was allowing students to massage his shoulders in class, and for showing movies unrelated to the curriculum. As a result, Respondent received an informal conference and a letter of written directives. The written directives included an admonition that Respondent refrain from “allowing students to massage your shoulders, neck, etc.,” and “any other physical contact with students.” No further action with respect to this complaint was taken at the district level. On October 2013, Respondent showed up to work under the influence of alcohol. He returned to work only after completing a rehabilitation program under the supervision of the District’s Support Agency. In September 23, 2016, Respondent was given a written reprimand for using profanity in the classroom. On November 21, 2016, later that same year, Respondent received a written Absence from Worksite Directive for having six unauthorized absences in November 2016. The incident giving rise to the discipline in this case took place on February 28, 2017, prior to the administration of an FSA examination to a group of sixth-grade students. The Notice of Specific Charges alleged that Respondent “walked around the classroom and slapped several students in the back of the head, grabbed others by the neck, and physically squeezed at least one student’s hands.” Respondent was to administer the FSA test with another instructor, Teresa Gonzalez. Before the start of the examination, Respondent walked around the classroom between the rows of student desks, gathering book bags, making sure that students had pencils for the test, and encouraging students to do their best. As he walked around the classroom, Ms. Gonzalez observed Respondent touch the back of several students’ necks or shoulders in what she described as correcting their posture. She also observed him “squash” a student’s fingers together in what she described as a prayer position. She could not, however, hear what Mr. Clark was saying to students because she was in the front of the room and Mr. Clark was in the back. Ms. Gonzalez could not identify the students who Mr. Clark touched because they were not her students. She also did not recall any comments by students, but stated at hearing that their facial expressions indicated that they did not like being touched by him.1/ Ms. Gonzalez also confirmed her statement to School District investigators that she did not believe Mr. Clark was angry with the students, and that it looked like his actions were a way of communicating and playing with the students. However, she was disturbed by Mr. Clark’s actions and reported them to her assistant principal. Two students testified regarding the February 28, 2017, incident. One of them, R.M., testified that before the exam, Mr. Clark grabbed his hands and squished them, and grabbed at the back of his neck, and stated that Mr. Clark also slapped another student on the back of the head. He testified that he was not hurt in any way by the action, but the other student said “ow” in response to Mr. Clark’s action. R.M. did not believe that Mr. Clark was trying to motivate the students. Student A.F. recalled Mr. Clark tapping the top of a student’s head and that the student just laughed. A.F. believed that Mr. Clark may have patted some kids on the back of the head before the test, but that he believed it was done to encourage the students, much like a coach would. Mr. Clark testified that he merely tapped students on the back of the head while telling them to do well on their test. He viewed the tap as similar to what a principal or school board attendee might do at a graduation or where a student was receiving a certificate. It was encouragement and not malicious, and not meant to hurt anyone. Mr. Clark acknowledged that he had been warned about harmful touching, and would not engage in that type of conduct, saying, “I wouldn’t want anybody hitting my kid. And for no way [sic] I would lose my pension for 31 years hitting a kid like that. That’s not my character.” Mr. Clark did not recall grabbing R.M.’s hand and testified that he generally stayed away from R.M. because R.M. was rude in his classroom, and they did not get along. Whatever the relationship between R.M. and Mr. Clark, it appeared from R.M.’s demeanor at hearing that he did not care for Mr. Clark, and that may have colored his testimony somewhat. It is found that Mr. Clark tapped several students on the back of the head or neck and squeezed at least one student’s hands together before the administration of the test. The gestures were meant to be an encouragement for the students to do well during the examination, and were not any form of punishment. Mr. Clark’s actions, based on the evidence presented, did not constitute corporal punishment, and did not rise to the level of use of force, much less excessive or unreasonable use of force. The Notice of Specific Charges also alleges that Respondent “used profanity towards at least one student, said other inappropriate things and also used the term ‘these/deez nuts’ prior to the start of the exam.” The only evidence presented regarding profanity during hearing was a statement by Ms. Gonzalez that an unidentified student stated that Mr. Clark was “cursing her.” There was no testimony from that student, and no description that is not hearsay describing what was allegedly said. While Petitioner attempted to characterize the hearsay statement of the student as an excited utterance, there was no evidence presented upon which to predicate that characterization. With respect to the use of the term “deez nuts,” Ms. Gonzalez did not hear Mr. Clark use the term. Both students testified that he did so, in response to a question asked by a student. R.M. testified that the term is slang for “I don’t know,” or “whatever,” and may refer loosely to a young man’s genitalia. A.F. also stated that Mr. Clark used the term “deez nuts” as sort of a joke, and said that use of the term used to be popular as sort of a joke. Both students’ description of the term was somewhat tentative. Mr. Clark testified that he had heard the term before from the students, but would not use it. The more persuasive testimony is that Mr. Clark used the term in response to a student in the classroom, but there was no compelling testimony that the term is anything more than rap- influenced slang. No evidence was presented to indicate whether the students found the term offensive or inappropriate, considered it to be profane, or that any student felt embarrassed or humiliated by its use. Further, the evidence was not persuasive that Mr. Clark intended by his use of the term to refer to genitalia. No evidence was presented regarding any other “inappropriate” comment made by Mr. Clark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board rescind its order suspending Respondent without pay, and reimburse him for the period for which he was not paid. DONE AND ENTERED this 13th day of August, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2018.
The Issue In Case No. 92-6291 the Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, on the basis of allegations of misconduct set forth in an Amended Administrative Complaint. The general nature of the charges against the Petitioner are that he engaged in certain criminal conduct, was found guilty of certain criminal conduct, failed to disclose information about his criminal record on his applications for employment and for a teaching certificate, on various occasions improperly touched several female students, and on one occasion used unnecessary force to discipline a male student. In Case No. 93-1227 the Petitioner seeks to suspend and terminate the Respondent's employment as a teacher with the Dade County School Board on the basis of allegations of misconduct set forth in an Amended Notice of Specific Charges. The general nature of the charges brought by the School Board is essentially the same as the allegations in Case No. 92-6291, although there are some differences in the specific details alleged.
Findings Of Fact Background and introductory matters The Respondent currently holds Florida teaching certificate number 286698, covering the areas of physical education and health education. The Respondent's certificate is valid through June 30, 1998. At all times material to this proceeding, the Respondent, John N. Pilla, was employed by the School Board of Dade County. He was initially employed as a Teacher Aide in January of 1969 and continued to work for the School Board of Dade County in several capacities through the 1977-78 school year. Following the 1977- 78 school year, the Respondent worked for other employers for several years. In 1984 he again applied for employment with the School Board of Dade County and was hired as a Substitute Teacher for the 1984- 85 school year. He was rehired in that capacity for the 1985-86 school year. After a break in service of several months, the Respondent was reinstated as a Substitute Teacher in October of 1986. In December of 1986 the Respondent was hired as a Teacher and he continued to be employed as a Teacher until the date of his suspension and termination from employment on February 17, 1993. As noted in more detail in some of the findings which follow, the Respondent was on several occasions given instructions or directives to the effect that he should avoid improper touching of students. Those instructions and directives were always qualified or modified in some way, so that the essence of the instructions and directives given to the Respondent was that he should avoid improper touching, or unnecessary touching, or touching not required by his teaching duties. The Respondent was never given an unqualified order that he was not to touch students under any circumstances. 5/ It has been a policy of the Dade County School Board at all times material to this proceeding that teachers are prohibited from engaging in inappropriate physical contact with students. The Respondent was aware of that policy. Events during the 1976-77 school year During the 1976-77 school year, the Respondent was employed as a teacher at North Miami Junior High. His principal at that school was Freddie Pittman. During the course of that school year several complaints were made to the effect that the Respondent had engaged in inappropriate conversations with female students and that he had engaged in inappropriate physical contact with female students. Mr. Pittman sought authorization to have those complaints investigated and shortly thereafter an investigation was conducted by School Board investigators. Several of the complaining students were interviewed and reported various instances of inappropriate conversations and inappropriate touching. 6/ The Respondent was interviewed by the investigators and denied all allegations of misconduct. The parents of all of the complaining students were advised of the investigation. All of the parents declined to press charges. Several weeks after the conclusion of the investigation, a conference was conducted on April 29, 1977, at which time Mr. Pittman and an Area Director met with the Respondent, reviewed with him the student allegations that had prompted the investigation, and then issued four directives to the Respondent. Those directives were reiterated in a memorandum to the Respondent dated May 2, 1977, as follows: You should refrain from any physical contact with your students unless it is required as part of your teaching duties. You should refrain from any conversations with your students that could be construed as improper, having sexual connotations or could cause the student to be embarrassed. You should refrain from inviting students to your home or to accompany you on personal trips without prior permission of the parent(s) or legal guardian(s). You should refrain from a display of affection towards your students such as holding hands, caressing, walking arm-in-arm, etc. The memorandum of May 2, 1977, also reminded the Respondent that: "It was stated emphatically that strong disciplinary action will be taken if the above directives or their intent are breached." The 1984 application for employment On March 21, 1984, the Respondent signed an Application for Instructional - Instructional Support Employment seeking reemployment with the Dade County Public Schools. The application included the following question: "Have you ever been convicted of anything other than a minor traffic violation?" The Respondent checked the "No" box in response to that question. The Respondent's answer of "No" appears to have been truthful. 7/ In connection with that same application for reemployment, on March 21, 1984, the Respondent also signed a form titled Security Check Authorization And Waiver Of Confidential Records. That form included a question as to whether the Respondent has ever been ". . . convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" In response to that question, the Respondent checked the "No" box. Immediately above the Respondent's signature the form included a statement that "the above entries are true, complete, and correct to the best of my knowledge and belief. . . ," and ended with the following statement: "I understand that a knowing and willful false statement on this form may result in immediate dismissal." For reasons discussed below, the Respondent's "No" answer on the form titled Security Check Authorization And Waiver Of Confidential Records was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize his employment prospects. The 1988 application for educator's certificate On May 11, 1988, the Respondent signed an Application For Educator's Certificate for the purpose of renewing his teaching certificate. The application included the following question: Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges now pending against you other than minor traffic violations? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. The Respondent checked the "No" box in response to that question and did not provide any details about any criminal charges. Immediately above the Respondent's signature the application included the following language: I understand that Florida Statutes provide for revocation of an educator's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. For reasons discussed below, the Respondent's "No" answer on the Application For Educator's Certificate was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize the issuance of his certificate. The Respondent's criminal record In 1982 the Respondent was arrested for misdemeanor trespass as a result of an altercation that took place between himself and his ex-wife's boyfriend in front of the ex-wife's house. On September 29, 1982, the Respondent entered a plea of nolo contendere to the charge of trespass in the Circuit Court of Broward County, Florida. By order issued that same day, the court withheld adjudication of guilt and placed the Respondent on six months of non-reporting probation. On May 15, 1984, the Respondent was arrested and charged with the following violations: (a) leaving the scene of an accident with injuries in violation of Section 316.027, Florida Statutes; (b) culpable negligence in violation of Section 784.05(2), Florida Statutes, and (c) driving on a revoked driver license in violation of Section 322.34(2), Florida Statutes. On May 24, 1984, a two-count information was issued against the Respondent. Count One charged him with leaving the scene of an accident with injuries in violation of Sections 316.027(1) and (2), and 316.062, Florida Statutes. Count Two charged him with driving while license is revoked or suspended (misdemeanor) in violation of Section 322.34, Florida Statutes. The Respondent went to trial on the charges in the information and on August 8, 1984, was found not guilty of Count One and guilty of Count Two. On September 6, 1994, the Respondent was sentenced to two years in prison, an enhanced sentence which was based on prior uncounseled convictions. 8/ The Respondent appealed and on November 6, 1985, the appellate court reversed the sentence and remanded the case for resentencing. On January 17, 1986, the trial court resentenced the Respondent to 30 days time served. Events during the 1989-90 School Year During the 1989-90 school year, the Respondent was employed by the School Board of Dade County as a physical education teacher at Biscayne Elementary School. His Principal at that school was Carlos Fernandez. Near the beginning of that school year, as a result of complaints from two parents, Principal Fernandez had a conference with the Respondent during which he told the Respondent that he should be careful dealing with the female students. Later during that same school year (toward the end of February) three female students sent notes to the Principal's office in which they mentioned either than the Respondent had touched them or they had witnessed the Respondent touch someone else. Once again Principal Fernandez had a conference with the Respondent and told him again that he should be careful dealing with the female students and stressed that allegations of improper touching were very serious matters that could have very serious consequences. Neither of the Principal's conferences with the Respondent were reduced to a written directive. The purpose of the two conferences seems to have been primarily to warn the Respondent to be more careful when he was around female students. 9/ The essence of Principal Fernandez' comments on these two occasions was that the Respondent should be more careful to avoid any touching that could be misconstrued as improper touching. Principal Fernandez did not direct the Respondent that he should never touch any of the female students. Later that same school year, on April 20, 1990, three female students went to the Principal's office and reported that the Respondent had touched one of them on her private parts and that the other two had witnessed it. The matter was reported to several outside agencies, including the local police. The police commenced a criminal investigation, which generated a great deal of publicity about the incident. On or about April 24, 1990, the Respondent was assigned to an alternate work position which did not involve student contact. He remained in that position while the allegations of April 20, 1990, were being investigated. On June 15, 1990, the Respondent was arrested and was charged with three counts of lewd and lascivious assault on a child. The Respondent posted $15,000 bond and was released. His arrest was widely publicized in television and newspaper coverage. On June 28, 1991, the State Attorney dismissed all of the criminal charges against the Respondent. The School Board conducted an internal investigation and concluded that the allegations that formed the basis for the Respondent's arrest were unfounded. The Respondent was returned to a teaching position in the summer of 1991. Events during the 1991-92 school year For the 1991-92 school year the Respondent was assigned to teach a split shift at two schools, Parkway Elementary School and Madie Ives Elementary School. The Principal at Parkway was Jack Silberman. The Principal at Madie Ives was Sally Blonder. During the 1991-92 school year, Principal Silberman met with the Respondent and told him that he should not touch any students in any improper manner and went on to emphasize that the Respondent should watch himself and make sure he did not touch any students in an improper way. In February of 1992 several students at Madie Ives Elementary School complained that the Respondent had touched them improperly or in a manner which they found to be offensive. During the 1991-92 school year there were no such complaints at Parkway Elementary School. One of the students who complained in February of 1992 was S. K. On one or more occasions during the 1991-92 school year the Respondent placed his hands on S. K.'s shoulders 10/ and turned her around in line when she was facing the wrong way. In doing so, the Respondent did not touch S. K.'s breasts, nor was there anything else improper about the manner in which he touched her. The act of turning S. K. around in line was a reasonable act under the circumstances and was within the scope of the Petitioner's duties as a teacher. One of the other students who complained in February of 1992 was M. C. On one occasion during that school year, M. C. walked up behind the Respondent, who was at that time busy watching some other students. M. C. stood quietly behind the Respondent waiting for an opportunity to ask him a question. The Respondent did not know that M. C. was standing behind him. The Respondent took a step backward and accidentally stepped on M. C.'s foot. The Respondent immediately (without looking around behind himself) reached out behind himself with one hand and instinctively tried to prevent himself and whoever he had stepped on from falling down. In doing so, his hand touched M. C. somewhere in the general area of her low back, hip, or buttocks. This touching of M. C. was entirely accidental. The Respondent did not grab, squeeze, or fondle M. C.'s buttocks, nor did he engage in any other improper touching of M. C. On another occasion during that school year, M. C. walked off of the soccer field with a severe limp. The Respondent, concerned that she might have a serious injury, told M. C. to sit down on the sidelines and he asked her where it hurt. She indicated the shin area of one leg, just above the ankle. The Respondent touched her shin to determine whether there was any palpable injury. He did not feel any indication of a serious injury. Thereupon, he suggested that M. C. rub the injured area with her fingers and briefly demonstrated what he was suggesting. The Respondent's actions of touching and rubbing S. K.'s shin was a reasonable act under the circumstances and was an act that was within the scope of the Respondent's teaching duties or, if not technically within his duties, was an act which it was reasonable for him to believe was within the scope of his teaching duties. There was nothing improper about the manner in which the Respondent touched M. C.'s shin. Pending an investigation of the February 1992 allegations, the Respondent was reassigned to teach only at Parkway Elementary School. The Respondent continued to teach at Parkway Elementary School without incident until sometime in mid-April of 1992, when a television station filmed the Respondent and broadcast a news story about the then-pending allegations and the Respondent's prior arrest on charges of lewd and lascivious conduct. A local newspaper also published a story about the pending allegations, prior allegations, and the prior arrest on charges of lewd and lascivious conduct. As a result of the television coverage and pressure from parents, in mid-April of 1992 the Respondent was reassigned to work in a position that did not involve contact with students. He continued to work in that position until February 17, 1993, when the School Board suspended the Respondent and initiated dismissal proceedings against him.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that in Case Number 92-6921, a Final Order be issued to the following effect: Dismissing the charges set forth in Counts Two, Four, Seven, Eight, and Nine; Concluding that the Respondent is guilty of the charges set forth in Counts One, Three, Five, Ten, Eleven, and Twelve; and Imposing the penalty of revocation of the Petitioner's teaching certificate. On the basis of all of the foregoing, it is RECOMMENDED that in Case No. 93-2723, the Dade County School Board issue a Final Order in this case concluding that the evidence is insufficient to establish any of the charges in the Amended Notice of Specific Charges and dismissing all charges against the Respondent. DONE AND ENTERED this 15th day of November, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994.
The Issue Whether the Respondent, Arthur Williams, committed the violations alleged in the Amended Notice of Specific Charges and, if so, whether such violations are just cause for his suspension without pay for thirty days.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Arthur Williams, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, the Respondent was employed pursuant to a professional service contract and was assigned to teach beginning band at Norland Middle School. The sole incident complained of in this case occurred on or about January 24, 2006, in the Respondent’s sixth period band class. The Respondent’s band class was located in a large classroom with three riser sections formed into a semi-circle. Students assigned seats in the higher section would step up the risers using the railed “hallways” leading to the upper sections. On or about January 24, 2006, C. M. was a student in the Respondent’s sixth period class. C. M. had an assigned seat in an upper riser section. For reasons known only to C. M., the student left his seat and walked down the riser hallway to pick up a piece of paper and throw it into a trash can located on or near the floor. Presumably, the trash can was at the lowest section (compared to the student’s seat). When the Respondent observed the student, C. M., out of his seat, he approached the student, put his hands on the student’s shoulders, turned him around (to then face his seat), and told him to return to his seat. In connection with the verbal direction to return to his seat, the Respondent gave the student a slight shove to direct him in the proper direction. The student, C. M., was out of his seat without permission, was unprepared for class, and was not responsible for throwing trash away (presumably an act he felt justified his behavior). The slight shove was so imperceptible that it did not offend any student who observed the action. C. M. did not show any sign of injury at the time of the incident described above. None of the students alleged that the Respondent had acted in anger in redirecting the student to his seat. None of the students perceived the act of redirecting the student as an act of corporal punishment or physical aggression against the student. Some six days after the incident complained of, the mother of the alleged victim took the student to the hospital. The mother claimed the student was diagnosed with a sprained ankle. There is no evidence to support a finding that the Respondent caused the alleged victim’s alleged sprained ankle. None of the other student witnesses verified that C. M. was injured or seen limping on or about the date of the incident. The Respondent continued teaching at the school through the conclusion of the 2005-2006 school year. The Respondent did not endanger the student, C. M., at any time. After the incident complained of herein, the student’s mother decided to move the student from the Respondent’s class. When the Respondent went to a conference with the office of professional standards there was no allegation that the Respondent had failed to comply with the corporal punishment guidelines. The act of redirecting the student to his seat was not an attempt at corporal punishment. The Respondent did not make physical contact with the student, C. M., to maintain discipline. It is undisputed that the Respondent was merely attempting to get the student to return to his seat. The Respondent’s conduct did not disparage the student. The Respondent’s conduct did not embarrass the student. The Respondent did not push C. M. down. On or near the date of the incident, the Respondent called C. M.’s parent to address the student’s poor class performance. The incident complained of herein was not addressed during the call. In fact, prior to the call, C. M. had not complained regarding the incident described above. When faced with an allegation of poor class performance, C. M. told his parent about the incident described above and claimed he had been injured in the process. The alleged injury prompted the removal of the student from the Respondent’s class. Thereafter, the parent contacted the Petitioner’s region office to file a complaint against the Respondent. That complaint resulted in the instant action. Ms. Pritchett maintained that the Respondent’s effectiveness as a teacher has been adversely impaired as a result of the parent’s complaint regarding the incident. The record lacks any information regarding the Respondent’s past school performance. No prior disciplinary issues or actions were noted.
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 concluding the Respondent’s behavior does not warrant a 30-day suspension. S DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue Whether just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 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, George L. Johnson (Johnson), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board), since 1982. 1/ The 1982-83 School Year In August 1982, Johnson was employed by the School Board as an occupational specialist, and assigned to Jan Mann Opportunity School. During the course of that employment, two events transpired which foreshadowed Johnson's conduct during the 1985-86 school year, and which precipitated this disciplinary proceeding. The first event occurred on March 9, 1983, when Johnson struck Pierre Sylla, an 8th grade student. On that date, Pierre had been disruptive in class, and had referred to Johnson by the nickname of "Flash". Pierre's conduct apparently offended Johnson's sense of decorum since he excused the class, called Pierre into a smaller room and, upon stating "this is why they call me Flash", punched Pierre in the left eye. The second event occurred on April 27, 1983, when Johnson struck Derrick Corner, a 14 year old student. On that date, Johnson was on leave, but reported to the school to pass out lunch cards. When Derrick approached Johnson to retrieve his card, he smelled alcohol on Johnson's breath and announced "I smell some Bacardi" rum. At that time, Johnson backhanded Derrick across the face, knocking him over a chair to the floor. On July 13, 1983, a conference was held between the School Board and Johnson to discuss the battery committed upon Pierre Sylla and Derrick Corner, as well as any disciplinary action to be taken against Johnson. The School Board concluded that Johnson would be referred to the employee assistance program, transferred to a regular school setting, and that no further disciplinary action would be taken. Johnson was, however, directed to comply with School Board rules for handling disruptive student behavior, and to discontinue the use of his hand in disciplining students. 2/ Notwithstanding Johnson's battery upon Pierre Sylla and Derrick Corner, Johnson's annual evaluation for the 1982-83 school year rated his performance acceptable in all categories, and recommended him for continued employment. The annual evaluation did note, however, that: Mr. Johnson's techniques for handling disciplinary problems need to be improved. Otherwise, he has potential for becoming a good teacher. The 1983-84 and 1984-85 School Years During the 1983-84 school year, Johnson was employed by the School Board as a physical education teacher at McMillan Junior High School. Johnson's annual evaluation for the 1983-84 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark contained on his evaluation was: Although your overall performance during the past year has been acceptable, I would recommend that you carefully self-evaluate your performance with regard to your professional responsibilities, i.e., punctuality. During the 1984-55 school year, Johnson was employed by the School Board as a physical education teacher at Riverside Elementary School and Douglas Elementary School. Johnson's annual evaluation for the 1984-85 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark on his evaluation was: You need to be on time every day and the same applies to lesson plans and reports. Adherence to school board policies is of the utmost importance -- also getting along with your peers. The 1985-86 School Year For the 1985-86 school year, Johnson was employed under a continuing contract with the School Board, and assigned to Silver Bluff Elementary School as a physical education teacher. The proof establishes that during the course of that school year Johnson reacted violently toward students for minor breaches of discipline, and that he failed to comply with lawful orders to refrain from the use of physical force to discipline students. That Johnson was fully cognizant of Silver Bluff's policy against the use of physical force is not disputed. At the school's first faculty meeting of August 28, 1985, Johnson was specifically advised that teachers were not to hit or paddle a child, and that they were not authorized to inflict corporal punishment. On September 16, 1985, following a complaint from a mother that Johnson had grabbed and shaken her son, the principal, Margarita Alemany, again cautioned Johnson that she did not approve of physical discipline, and that he was not to touch his students in any way. Notwithstanding the lawful directives of his principal, the evidence establishes that Johnson routinely relied upon physical and verbal abuse to discipline students for minor transgressions. From late September 1985 to December 1985, the proof establishes that Johnson committed the following abuses toward fourth grade students in his charge: Estany Carballo, who should have been standing in line, was playing in a mud puddle with a toy car. Johnson approached Estany from behind, grabbed his neck, and forced his head downward toward the water. Johnson pulled Estany up by the neck, admonished him "not to do that again", and returned Estany to his place in line. The force exerted by Johnson upon Estany was sufficient to traumatize his neck, inflict pain and limitation of movement, and require the treatment of a physician. Noah Verner and Aramis Hernandez were standing out of line and talking. Johnson grabbed each by the hair with a clenched fist, banged their heads together, and ordered them back into line. Robert Diaz, while standing in line, was talking to a girl behind him. Johnson approached Robert from behind, grabbed him by the hair and, exerting enough force to almost lift him from the ground, stated "who do you think you are asshole?" James Worthington was leaning against a fence, an apparent violation of a Johnson directive. Johnson grabbed his head between his hands and, shaking the child violently enough to induce pain, admonished James not to lean on the fence. Roberto Sanchez was attempting to perform an exercise with the rest of the class, but was unsuccessful. Johnson noted Roberto's failing to the class and opined vocally that if a boy couldn't do an exercise when he was in school, the whole class would beat the boy up. Johnson also embarrassed Roberto by referring to him as "fatso" in the presence of the class. While not exhaustive of the litany of incidents established at the final hearing in this case, the events related in paragraph 11, supra, establish Johnson's failure to abide by lawful directives of his superior, as well as a penchant toward a violent behavior which was harmful to the health and safety of his students. Due to the notoriety of his conduct, Johnson's service in the community, as well as his effectiveness in the school system, was severely impaired. In addition to its claims of insubordination and misconduct in office, the School Board also seeks to discipline Johnson under a claim of incompetence. The predicate for the School Board's charge are the results of three formal observations of Johnson's performance at Silver Bluff Elementary School between October 17, 1985 and January 10, 1986. On October 17, 1985, Ms. Catherine Day, assistant principal of Silver Bluff Elementary School, conducted a formal observation of Johnson's 1:30 p.m. - 2:00 p.m., second grade physical education class. It is worthy of note that the impetus for the October 17, 1985, observation was Johnson's request that the 1:30 - 2:00 p.m. class be observed. That class was a double class, over 60 students, and unwieldy. Ms. Day found that the session taught by Johnson did not comport with the mandatory objectives or activities contained in his lesson plan, that he did not explain to the students the objectives or activities for that day, that he provided no feedback to the students regarding their performance that day, that he allowed students to stand idle for 10 minutes and dismissed them 10 minutes early, and that his class record book contained no grades. Accordingly, Ms. Day rated Johnson's performance as unacceptable in the categories of (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction and (5) assessment techniques. Ms. Day reviewed the results of her observation with Johnson, provided Johnson with a prescription for improvement, agreed to provide Johnson with an assistant for the 1:30 - 2:00 p.m. class, and established a deadline of November 1, 1985, to correct the deficiencies. On November 20, 1985, the principal, Ms. Alemany, conducted a formal observation of Johnson's 10:15 a.m. second grade class and 10:45 a.m. sixth grade class. Ms. Alemany found, inter alia, that the lesson plan for Johnson's sixth grade class contained no objectives, that he failed to provide feedback or suggestions to improve performance, and that after 9 weeks his grade book for the sixth grade class failed to indicate the activity graded and for the second grade class failed to show any grades -- the grade book should have reflected one grade per week for a designated activity. Accordingly, Ms. Alemany, as did Ms. Day, rated Johnson's performance as unacceptable in categories (1) preparation and planning, (4) techniques of instruction, and (5) assessment techniques. On January 10, 1986, Ms. Alemany conducted the final observation of Johnson's performance. While Johnson's overall performance had improved, he was still rated unacceptable in categories (1) preparation and planning, since he failed to have lesson plans available, (4) techniques of instruction, since he failed to provide feedback or suggestions to improve performance, and (5) assessment techniques, since he failed to have any grades for the second, third, fifth or sixth grade classes. Ms. Alemany reviewed the results of her observation with Johnson, provided a prescription for improvement, and established a deadline of January 16, 1986, to correct the deficiencies. On January 17, 1986, a conference-for-the-record was held between Ms. Alemany and Johnson. At that time, Johnson's performance assessments were reviewed and he was advised: It should be noted for the record that you were advised that noted deficiencies must be remedied by your next observation which (sic) approximate date is 1-24-86. Failure to do so ... will have an adverse impact upon your employment. We will continue assisting you as we have in the past. Johnson was not, however, to be accorded any further observations. As events transpired, January 17, 1986, was his last day of employment at Silver Bluff Elementary School; thereafter, he was assigned to the South Central Area office pending School Board action. On February 19, 1986, the School Board suspended Johnson and initiated these dismissal proceedings. Johnson resists the School Board's suspension and proposed dismissal for incompetency on several grounds. First, he avers that Ms. Alemany harbored some animosity toward him because of his service as a United Teachers of Dade union representative. The proof fails to support such a finding. Second, Johnson avers that his request for an independent observation following Ms. Alemany's observation of November 20, 1985, should have been granted. While it may have been better practice to grant such a request, the School Board was bound to no such requirement. Finally, Johnson avers that the School Board's failure to accord him an independent observation following two unacceptable "summative observations" requires that his suspension and proposed dismissal for incompetence not be sustained. 3/ Johnson's final assertion is also without merit. While the proof established that the School Board routinely employed an independent observation following two unacceptable summatives before it recommended dismissal for incompetence, Johnson's removal from the classroom prevented further observation. Where, as here, the School Board removes a teacher from the classroom for cause, i.e.: battery upon a student, it is not thereby barred from seeking the suspension and dismissal of a teacher for incompetence even though an independent observation was not performed. While the School Board is not precluded from maintaining its charge of incompetence, it has failed to demonstrate that Johnson's unsatisfactory performance, observed on three occasions, deprived the students in his charge of a minimal educational experience, or that such performance failed to comply with the rules of the School Board or the terms of the parties' contract. Johnson's deficiencies, absent such proof do not demonstrate incompetence by reason of inefficiency. Further, the physical and verbal abuses Johnson was shown to have visited upon students, while improper, do not establish a lack of emotional stability. Therefore, the School Board also failed to demonstrate that Johnson was incompetent by reason of incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, George L. Johnson, from his employment, and dismissing Respondent, George L. Johnson, from his employment with the School Board. DONE AND ENTERED this 30th day of December, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986.
