The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
The Issue The issue for determination is whether Respondent should be dismissed from employment with Petitioner.
Findings Of Fact In 1987, Steven E. Belford, hereinafter Mr. Belford, began his employment with the Palm Beach County School Board, hereinafter School Board, as a School Police Officer. From 1991 through April 1995, Mr. Belford considered the conduct of the School Board’s employees, including supervisory and management personnel, towards him to be racially hostile. During this same time period, from 1992 through April 1995, the School Board considered the conduct of Mr. Belford towards co-workers, supervisors, superiors, and students to be inappropriate. On April 10, 1995, a meeting, which could affect Mr. Belford’s employment, was held regarding his job performance. At this meeting, Mr. Belford was represented by counsel from the Police Benevolent Association, hereinafter PBA. Also among those present at the meeting was James Kelly, Chief of the School Police for the School Board. Chief Kelly was concerned with Mr. Belford’s conduct in the performance of his duties. During this meeting, Mr. Belford described the problems that he was experiencing in the work place. After listening to Mr. Belford, Chief Kelly’s concerns extended to the safety of students, staff, and visitors at the school to which Mr. Belford was assigned. As a result of this meeting, Chief Kelly determined that Mr. Belford should and would be required to undergo a fitness for duty examination. Mr. Belford’s PBA counsel advised him to undergo the fitness for duty examination. Even though Mr. Belford’s position was that there was no basis for the examination and that it was, therefore, inappropriate, he agreed to the examination. Mr. Belford was willing to comply with whatever was required of him, even though he may not agree, to keep his job. It is undisputed that the referral of Mr. Belford for a psychological evaluation was reasonable. On April 25 and 26, 1995, Dr. Harley V. Stock performed what he referred to as the “mandatory fitness for duty examination.” In Dr. Stock’s evaluation, dated May 3, 1995,2 he stated, among other things, the following: [Mr. Belford] shows no impairment in relationship to reality. . . . there was no indication of any underlying mood disorder. . . . There is no indication of any underlying thought disorder. . . . In summary this examiner has had the opportunity to review a significant amount of collateral information regarding Mr. Belford’s employment with the Palm Beach School Police Department. It appears that he has had fluctuating reviews, particularly in areas as it relates [sic] to interpersonal interactions. When confronted with documentation, Mr. Belford always has an “excuse”. He essentially feels that most of the problems that he is currently facing are a result of racial discrimination. He takes absolutely no responsibility for his own behavior. He is overly suspicious about other people’s motives towards him. He denies any type of provocative physical action towards the students or others. He believes that he is “misunderstood”. Psychological testing reveals him to be a skeptical, suspicious, over-controlled individual who may have the propensity to lose his “temper” at times when provoked. He, however, will have no insight into this. Instead, he would rather shift the blame, and responsibility to others for any problems that he finds himself in. I find some of Mr. Belford’s explanations for his behavior, as contained in the allegations, incredible. Based on psychological testing, Dr. Stock made the following recommendations in his evaluation: Because of his current psychologic [sic] functioning, his behavior at this time cannot be predicted in terms of his interactions with students and faculty members. He obviously harbors a great deal of hostility towards others, but does not either acknowledge, or recognize it. This can lead to episodes where he may become physically assaultive at the most, or at the very least, verbally aggressive in a way that is inappropriate in a school environment. I would therefore recommend that he is temporarily Unfit For Duty and that he needs mandatory psychologic [sic] counseling. Mandatory psychologic [sic] counseling means that the School Board should be appraised [sic] of his keeping scheduled counseling appointments, and that within a reasonable time, he be re-evaluated to ascertain whether he is making any progress in psychotherapy and gaining any insight into how to both understand his behavior and to modulate his impulses. During the time of treatment, I would recommend that he not engage in any functions that would place him in the role of having any type of “police authority”. This would include coming into contact with students and administrators. However, his psychologic [sic] condition does not render him totally incapable of employment. A “light duty” position would be appropriate in which he can carry on selected roles as described by the School Board while receiving treatment. After treatment is completed, within a reasonable time, Mr. Belford should then be re-evaluated to see if indeed treatment has had any effect on him. At that juncture, a further determination can be made about his work placement. In a meeting held on May 17, 1995, the results of Dr. Stock’s evaluation were discussed with Mr. Belford who was accompanied by his PBA counsel. Mr. Belford was advised that Dr. Stock considered him to be temporarily unfit for duty. In May 1995, in accordance with Dr. Stock’s recommendations, Mr. Belford was removed from duty. He was assigned light duty in the risk management department while he underwent counseling. Mr. Belford’s psychological counseling sessions were conducted by MCC Behavioral Care. His counseling sessions began on May 18, 1995. The School Board coordinated Mr. Belford’s appointments with MCC Behavioral Care and Dr. Stock. Melinda Wong was the coordinator for the School Board. During his last counseling session with MCC Behavioral Care held on August 4, 1995, Mr. Belford and his counselor agreed that he need not return to MCC Behavioral Care for any more counseling sessions. However, the counselor did not indicate to Mr. Belford whether he should or was required to return to Dr. Stock for a final evaluation. In August 1995, a representative from Ms. Wong’s office informed Mr. Belford that his final evaluation with Dr. Stock would be conducted on August 29, 1995. Mr. Belford attended the session with Dr. Stock on August 29, 1995. Mr. Belford departed the session with the understanding that the session was for his final evaluation and that Dr. Stock would submit his final report to the School Board within the next week. However, no final determination was made by Dr. Stock regarding Mr. Belford’s fitness for duty. Dr. Stock had concerns regarding the appropriateness of the counseling provided to Mr. Belford by MCC Behavioral Care. During the month of September 1995 and subsequent months, Mr. Belford periodically inquired of Ms. Wong about the status of Dr. Stock's final determination. Each time, she informed him that no determination had been made by Dr. Stock. Mr. Belford was clearly frustrated. On October 5, 1995, Mr. Belford filed a complaint of discrimination with the Equal Opportunity Employment Commission, hereinafter EEOC, against the School Board. Finally, Dr. Stock's office contacted Ms. Wong and informed her that Dr. Stock needed to have one more session with Mr. Belford in order to make a final evaluation. Ms. Wong arranged for the session to be conducted on January 3, 1996, after Mr. Belford's Christmas vacation. On Friday, December 15, 1995, at approximately 2:40 p.m., Ms. Wong went to Mr. Belford’s workplace which was in the immediate vicinity of her workplace. She advised Mr. Belford that he needed to attend a final session with Dr. Stock on January 3, 1996, in order for Dr. Stock to prepare the final evaluation. Believing that he had attended his final session with Dr. Stock on August 29, 1995, and that Ms. Wong was not aware of the final session, Mr. Belford informed Ms. Wong that he had already completed his final session and requested that she check her records. Mr. Belford was visibly tense and upset. Ms. Wong was surprised by Mr. Belford's reaction. She interpreted Mr. Belford's conduct as refusing to attend his last session with Dr. Stock for a final evaluation. Ms. Wong departed Mr. Belford’s workplace and immediately contacted Chief Kelly. Seeking advice, Chief Kelly telephoned Louis Haddad, the School Board’s Coordinator of Employee Relations. Mr. Haddad advised Chief Kelly to immediately contact Mr. Belford and to arrange a meeting with Mr. Belford that afternoon in Mr. Haddad's office, which was in the same building. Attending the meeting would be Mr. Belford, Chief Kelly, Ms. Wong, and Mr. Haddad. Chief Kelly telephoned Mr. Belford and informed Mr. Belford that he wanted to meet with him in Mr. Haddad's office. Mr. Belford informed Chief Kelly that he was getting-off work in approximately 10 minutes at 3:00 p.m.. At that time, Chief Kelly made it clear that he was giving Mr. Belford a direct order to attend the meeting. Mr. Belford advised Chief Kelly that he wanted his counsel present at the meeting. Chief Kelly did not respond to Mr. Belford's request, but asked him if he was refusing to attend the meeting, thereby disobeying a direct order. Immediately, Mr. Belford became nervous and afraid and felt queasy in the stomach. He inquired as to the location of the meeting. Chief Kelly informed him where the meeting was being held, and they both terminated the telephone conversation. Mr. Belford was on duty when Chief Kelly gave him the direct order to attend the meeting. Mr. Belford did not refuse to attend the meeting. He intended to attend the meeting. When the telephone conversation ended, Chief Kelly had a reasonable expectation that Mr. Belford would obey the direct order and attend the meeting being held that afternoon. Shortly after the telephone conversation with Chief Kelly, Mr. Belford began recalling the events leading up to the telephone conversation, and his nervousness and queasy feeling intensified. Mr. Belford became ill and was unable to attend the meeting. He departed from his workplace without notifying anyone of his sudden illness3 and without attending the meeting. While waiting for Mr. Belford, Chief Kelly, not being aware that Mr. Belford had departed his workplace, telephoned Mr. Belford's PBA counsel and informed him of the meeting and briefly of the underlying circumstances. The PBA counsel considered the meeting appropriate and advised Chief Kelly that he would be available by telephone when Mr. Belford arrived. Immediately after leaving his office, Mr. Belford contacted his new counsel. At approximately 3:25 p.m., a representative from the office of Mr. Belford's new counsel telephoned Chief Kelly. The representative of Mr. Belford's new counsel indicated to Chief Kelly that Mr. Belford would not be attending the meeting due to his sudden illness. Chief Kelly informed the representative that Mr. Belford had disobeyed a direct order and that, among other things, Mr. Belford was relieved of duty and would be recommended for termination due to insubordination. Prior to this telephone call, Chief Kelly had no knowledge that anyone other than the PBA counsel was representing Mr. Belford. Unbeknownst to the PBA counsel and Chief Kelly, Mr. Belford had decided prior to December 15, 1995, that he no longer wanted the PBA counsel's representation and that he wanted new counsel. On Monday, December 18, 1995, the next business day, Chief Kelly received written notification from Mr. Belford's new counsel regarding the reason for Mr. Belford's failure to attend the meeting. It is undisputed that there is no right to consult an attorney before obeying a direct order of a superior officer. Furthermore, it is undisputed that obeying a direct order from a superior officer is a critical and important aspect of the responsibilities of a police officer. On December 20, 1995, Chief Kelly recommended that Mr. Belford be terminated from employment with the School Board for insubordination. Mr. Belford never had a session with Dr. Stock subsequent to August 29, 1995. It was reasonable for Mr. Belford to presume that, since he was being recommended for termination, he was not expected to attend any future session with Dr. Stock. Dr. Stock never made a final determination as to whether Mr. Belford was fit to return to duty. On January 9, 1996, a pre-termination meeting was held with Mr. Belford at which he was represented by counsel. At the meeting, Mr. Belford was notified that he was being terminated for gross insubordination. By letter dated January 26, 1996, the School Board notified Mr. Belford that he was being suspended without pay and that he was being recommended for termination due to gross insubordination. On February 23, 1996, the School Board responded to Mr. Belford's charge of discrimination filed with the EEOC. The School Police for the School Board has a written policy regarding separation from employment. The policy defines gross insubordination in section "IV. C. Suspension/Termination" as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Furthermore, section "IV. D." provides that "Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement." The School Board and the Palm Beach County PBA have a collective bargaining agreement, hereinafter CBA. Article 7 of the CBA, entitled "Police Officers Bill of Rights," provides in pertinent part as follows: 7.1 All law enforcement officers employed by the School Board shall have the following rights and privileges: Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions: * * * I. At the request of any law enforcement officer under investigation, he/she shall have the right to be represented by counsel or any other representative of his/her choice who shall be present at all times during such interrogation when the interrogation relates to the officer's continued fitness for law enforcement service. * * * 5. No law enforcement officer shall be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise be discriminated against in regard to his/her employment, or be threatened with any such treatment, by reason of his/her exercise of the rights granted by this part. Article 29 of the CBA, entitled "Progressive Discipline," provides in pertinent part as follows: This Section covers actions involving oral or written warnings, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. * * * 8. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), any employee may be demoted, suspended, or dismissed upon recommendation of the Chief of Police to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the District or other flagrant violation, progressive discipline shall be administered as follows: Verbal warning (written notation). Written warning. Written reprimand filed in Personnel. Suspension with or without pay. Dismissal. It is inferred and a finding is made that Mr. Belford is a member of the Palm Beach County PBA and is, therefore, subject to the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order revoking the suspension and dismissal and reinstating Steven E. Belford under terms and conditions as are appropriate. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.
The Issue The issue is whether Respondent, Debra Turnbull’s (“Ms. Turnbull” or “Respondent”), employment with Petitioner, Palm Beach County School Board (“School Board” or “Petitioner”), as an elementary teacher, should be terminated, based upon the statements of the nature of the controversy set forth in the Joint Second Amended Pre-hearing Stipulation filed by the parties.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, Petitioner has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent is an experienced teacher who has been trained in the proper method of interacting with co-workers and students, exercising best professional judgment, and following rules, policies, and directives. At all times relevant, Respondent was employed with Petitioner as a teacher at Forest Hill and had been assigned there for approximately two years, initially serving as a second-grade, dual language teacher. At all times relevant, Respondent’s employment was governed by the CBA between the District and the Classroom Teachers Association, School Board policies, and Florida law. Respondent was notified, by a Notice of Recommendation for Termination of Employment, dated and acknowledged by her on October 29, 2019, that she was being recommended for a 15-day suspension and subsequent termination due to: (1) Failure to Exercise Best Professional Judgment; (2) Gross Insubordination; and (3) Continued Failure to Follow Policy/Rule or Directive, when she screamed and yelled at her students. An Administrative Complaint, detailing the charges, was served on Respondent, through her attorney, on December 9, 2019. A few months after being assigned to the dual language class, Respondent was moved to a position in the Forest Hill computer lab, which was part of the fine arts rotation for students. As a media specialist, Ms. Turnbull was responsible for checking library books in and out; helping children find books; reading aloud with children; helping students with independent reading; developing lessons to encourage the students to interact with media other than books; and working in a partnership with the home room teachers to support them in special projects and research. The students’ homeroom teacher is not present during the media center visit by that teacher’s students, and routinely drops the students off at the beginning of the 30-minute time block, returning to pick them up at the conclusion of the visit. On or about April 12, 2019, Ms. Turnbull was working on a project with third and fourth-grade classes. She had been given broad discretion in developing a project for the third and fourth graders to celebrate the Everglades. The project was designed to have the children investigate and do research on various aspects of the Everglades, then produce a project to demonstrate what was learned. Ms. Turnbull decided to have each child do some individual research on a topic related to the Everglades, followed by their presenting their findings in a form with which they were comfortable. She gathered numerous books about the Everglades, a video or a DVD to play about the Everglades, and expected that the project would ultimately end up in an Everglades museum that would be displayed in the media center for the rest of the school’s students to visit and learn about the Everglades. She imposed a deadline on the students to have the project completed within three class sessions. In administering the Everglades project, Ms. Turnbull’s intent was that all of the children would research a topic in which they had a true interest. She gave an initial class in how to research and suggested some ideas for project topics. She and the students of each class brainstormed a list of approximately 15 topics that interested the children, which were placed on the board for all the children to see. Ms. Turnbull explained to the students that she would go around the room, so that each student could select the topic on which he or she would like to work, but that no more than four students in each class could work on a single topic, in order to enhance the learning experience for all by having more topics covered. Ms. Turnbull tallied the number of students who selected each topic, and, once a topic was chosen by four students, subsequent choosing students were redirected and limited to the other topics, which were ample for the class sizes. Once the topics were selected and assigned, the classes brainstormed different types of project presentations which could be used. Students were able to produce a diorama, an advertising poster, a research report, or other methods of presenting their projects. Ms. Turnbull used the same rule, that once four students selected a particular method of presentation, that mode would be closed. Similar to the selection of topics, Ms. Turnbull tallied the number of students who selected each presentation method, and, once a mode was chosen by four students, subsequent choosing students were redirected to other choices. On April 12, 2019, Ms. Turnbull met with the students from Ms. Goodson’s third-grade homeroom class, who were dropped off at the media center for their second project session. As they arrived, Ms. Turnbull directed the students to sit at the media center tables, where she had a whiteboard set up, and she and the students began to interact and list the various Everglades topics which interested them. On that day, the students had recently returned from spring break. Ms. Turnbull explained that all teachers know that, after spring break, students are looking towards the end of the school year and are not always focused. She felt that, as sometimes happens, “they were just not with me that day.” They were somewhat uncooperative and talking to each other, rather than listening to what she was saying. Ms. Turnbull had never had a particular problem with that class. It was one of the classes that she looked forward to seeing because they “had a good time together and got things accomplished.” However, on that day, the students were not following the directions she was giving them with respect to choosing the topic for their projects and then choosing their mode of presentation for the topic. Ms. Turnbull gave Ms. Goodson’s students specific directions that no more than four people could choose the same project and that, once there were four students who had selected a particular topic or project, that topic or project was no longer in play, and the next students who chose had to select something else. The students were not paying attention, and, when somebody tried to be the fifth or sixth person to choose the same topic, Ms. Turnbull would again tell the selecting student that there could be no more than four in a grouping and pointed to the board where the students could see four tally marks next to that topic. She would explain that the topic had closed and that something else had to be chosen. Soon thereafter, it would happen again with another student. When she had gone through the entire class, and when the tally marks were totaled, the numbers did not match, meaning that some students had not even made their selections. Gregory York, the IT person assigned to Forest Hill since 2004 or 2005, is responsible for fixing all technical problems at the school. Mr. York testified that he was in the media center on April 12, 2019, to discuss a repair issue with Respondent when he heard her yelling and screaming at a student who had raised her hand. Mr. York further testified that he and Ms. Turnbull “got into a little shouting match as well [when he explained why he could not fix her VCR], so [he] just left.” He described Respondent’s tone of voice as a “very high-pitched tone. Aggravated. … Loud and upset.” He specifically recalled a particular incident with one student as follows: But the one that I kind of recall was with that one particular student when direction was given to raise their hand and when she raised the hand, I guess the answer wasn’t good enough and it just got … it wasn’t just -- I don’t know, I don’t know what word to use, but it was just … I just felt like the student was just following directions and it seemed like she just got in trouble for following directions, from me, that’s all I’m saying. Mr. York admitted, on cross-examination, that “at the beginning, I don’t recall the whole conversation because I was too focusing [sic] with the IT person and then as I -- as we -- as I settled down, that’s when I can pretty much hear -- not hear, but I can see the environment and the tone has changed and that’s what I remember.” He did not remember what was being said when he claimed that the tone changed. Mr. York also remembered, on April 12, 2019, that a student raised her hand to ask a question. He did not recall the entire conversation, but said “it was like an upset conversation and everything and the student just wanted to ask the question and couldn’t answer it or whatever... it was just... just the whole ordeal was just loud.” Mr. York said that, after getting yelled at, “to me for following directions, she did not see -- she seemed a little hurt about it or whatever.” He claimed to “just remember the incident with the one student in particular, with the student raising their hand and, you know, she was just... It was an incident of her yelling at the kid and, you know, the kid got sad and everything like that.” Although he did not recall in any detail what was said or being done, Mr. York claimed “I just felt like the student was just following directions and it seemed like she just got in trouble for following directions from me, that’s all I’m saying.” He did not know why the student raised her hand or what she said. On cross-examination, Mr. York admitted that the hand raising “had something to do with voting, and, like I said, I heard that part and I remember the student just following direction, raising their hand and -- ... raising their hand to speak or maybe vote. I remember that part, the students raised their hand and she asked the student go ahead. And when she said what she had to say, it just went bad after that.” He repeated that he was within ten feet of Ms. Turnbull when this exchange took place, but did not recall whether Ms. Turnbull was explaining that there were already too many students who had made the particular selection. Also on cross-examination, after having his memory refreshed with his prior written statement and deposition testimony, Mr. York admitted that while he did not recall what Ms. Turnbull was “yelling” at the kids, he recalled her yelling or screaming at Assistant Principal Higgins about books. Ms. Turnbull testified that she was not yelling at the children. She admitted that the situation was getting a bit annoying and that, as time went by, and the same situation kept occurring over and over, she became what she termed, “a little bit more stern.” On cross-examination, Ms. Turnbull conceded that she has a loud voice and that sometimes people misinterpret a loud voice or enthusiasm as raising her voice. She explained that she was “a New Yorker,” having a style and expressing herself in a way that some consider “loud, animated, excited and boisterous.” Because the media center door is kept locked, teachers returning for their students typically knock on the door. Ms. Goodson did not knock on the door, but was somehow let into the media center, although she did not immediately ask for her students to leave the media center while Ms. Turnbull continued to work with them. Ms. Turnbull could not recall how long Ms. Goodson observed her students in the media center. Ms. Goodson recalled and estimated being in the media center for about 30 minutes. Ms. Goodson waited in the media center as Ms. Turnbull continued beyond the allotted class time with her students. Eventually, Ms. Goodson indicated that she had to return to her classroom with her students. There was a brief discussion between Ms. Turnbull and Ms. Goodson as the class was leaving. Ms. Turnbull asked Ms. Goodson if she would spend time in her classroom having the students choose topics and methods of presentation, as she had observed that those matters were not completed in the media center that day. Ms. Goodson, she testified, responded that “they are a low class.” Ms. Turnbull assumed Ms. Goodson was referring to academic ability, and responded that, even if they are low, this was not an academic exercise, but was rather a situation of making a choice and following directions. Neither teacher was yelling; instead, they were speaking quietly, because the children were in close proximity to them. Ms. Goodson had never discussed her students’ academic level with Ms. Turnbull until that day. Ms. Turnbull never thought of the class as a “low class.” She would have approached the lesson differently had Ms. Goodson advised that she believed her class was incapable of following two-step or three-step directions. Ms. Turnbull felt that Ms. Goodson spoke about her students as a “low class” in an effort to explain or excuse their behavior that day. When asked about the allegation that she yelled at Mr. Higgins when he was in the media center while Ms. Goodson and her class were present that same day, Ms. Turnbull testified that, since he was an assistant principal, she considered Mr. Higgins to be her boss. She would never yell at him, she testified. Ms. Turnbull felt that Mr. Higgins was someone to whom she could talk, and had she thought that he did something wrong with a book, she would have spoken with him. She did not recall any interaction with Mr. Higgins that day, or even that Mr. Higgins was in the room. In her deposition testimony, Ms. Goodson recalled that, at some point, Mr. Higgins was in the media center. She recalled Ms. Turnbull “went off for a couple minutes on him, saying next time do this, this and this. That’s not how we do it here, something like that.” Mr. Higgins testified during Ms. Turnbull’s case. He knows Ms. Turnbull and was familiar with this case. Mr. Higgins was aware that he had been identified as having been present in the media center during the alleged incident of April 12, 2019. He testified that he did not recall any incident that took place with Ms. Turnbull. He provided a statement during the investigation at a time shortly after the alleged incident wherein he stated that he did not hear anything from Ms. Turnbull on that date. He recalled being asked by Mr. York to assist with repairing the VCR. Mr. Higgins testified that Ms. Turnbull did not yell at him. Mr. Higgins said that he was not the type of person who would accept being yelled at without taking some action since he is the assistant principal and Ms. Turnbull is a media specialist. Mr. Higgins testified that he “returned the book, kind of finished the tech issue with work and walked out.” Mr. Higgins did not witness any yelling, screaming, or anything like that. Similarly, Ms. Turnbull did not recall any interaction with Mr. York on that day, although she recalled that some time before that day she had asked Mr. York to remove a cassette that had gotten stuck in her VCR. She conceded that, although she did not recall him being there, he could have been in the media center on that date. Ms. Turnbull recalled the student Mr. York mentioned in his testimony, although she did not recall her name. The student had a physical exceptionality and used an assistive device to walk. Ms. Turnbull was not aware of the student having any intellectual exceptionality. Like Mr. York, she did not observe the student crying at any point, and testified that she did not observe her upset or with a quivering lip. Ms. Turnbull did not intend to disparage or embarrass the student. Scott McNichols is the principal at Forest Hill. He testified that homeroom teacher Ms. Goodson reported an incident with Ms. Turnbull. Mr. McNichols had Ms. Goodson complete a witness statement. When Ms. Goodson provided the statement, Mr. McNichols contacted the school district labor relations department. Mr. McNichols spoke to no other witnesses about the matter. In general, classes at Forest Hill were heterogeneous with all different kinds of students mixed together. Ms. Goodson’s class was not an exceptional student education (“ESE”) class. She had some students with Individual Education Plans “(IEPs”), and some without. The level of the students in Ms. Goodson’s class was not advertised to the public. A teacher on the art wheel would only know whether Ms. Goodson’s class had ESE students if the ESE contact informed her. Mr. McNichols had no way to know whether the ESE contact informed a teacher as to the existence and nature of a student’s IEP. Ms. Turnbull specifically testified that the ESE contact never informed her of such matters concerning Ms. Goodson’s class. Ms. Vicki Evans-Paré is the director of Employment and Labor Relations for the District. She has held that position for a little over two years and is responsible for handling the CBA and employee discipline, along with other duties. With regard to employee discipline, it is her office that investigates and maintains discipline files. After consultation with the Superintendent regarding his decision as to employee discipline, her office is responsible for drafting the notice of recommendation to the employee that the Superintendent signs. With regard to Respondent’s case, Ms. Evans-Paré testified that she is familiar with Ms. Turnbull’s discipline file. As a records custodian for Petitioner, she provided clear and uncontroverted testimony with regard to the CBA’s provisions for progressive discipline and skipping steps when there is either an immediate danger to the health, safety, and welfare of students or district and/or a flagrant and purposeful violation of the rules. As the director, she makes recommendations regarding discipline to the Superintendent, and she found that Ms. Turnbull had a history of making inappropriate comments to students and acting inappropriately and had previously been given warnings and reprimands; such that, skipping steps, to suspension, was warranted given that prior discipline was not having an effect at all on Respondent’s behavior. Ms. Evans-Paré further testified as to the past practice under the CBA relating to the use of a verbal reprimand with written notation relative to notice of previously given directives. The CBA refers to the personnel file in Article II, Section B, under Rights and Responsibilities. In that provision, it states that “no item can be used to the detriment of an employee unless it is a part of his/her personnel file.” The two verbal reprimands that were offered into evidence were not being offered for progressive discipline purposes, but as allowed under Article II, Section M - Discipline of Employees, as follows: 5. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited. * * * Except in cases which clearly constitute a real and immediate danger to the District, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand with a Written Notation - Such written notation shall not be placed in the employee’s personnel file maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule. Under the discipline section, the verbal reprimands are certainly a matter of record that is permitted to be cited to, and the phrase “to the detriment of the employee” that is in the section regarding the personnel file, was not included. The terms in the CBA regarding the verbal reprimand and personnel file are not ambiguous. Therefore, they must be given their ordinary meaning. Rivercrest Cmty. Ass’n, Inc. v. Am. Homes 4 Rent Props. One, LLC, 298 So. 3d 106, 111 (Fla. 2d DCA 2020). Respondent acknowledged that she was trained in the Code of Ethics and that she had received previous directives regarding appropriate interaction with students, failure to exercise best professional judgment, and insubordination. She further acknowledged that she had received the allegations against her in the pre-determination notice and packet. Respondent has a prior disciplinary history. Respondent received a Written Reprimand on or about February 24, 2004, while working at Addison Mizner Elementary School, for “actions that violated the Code of Ethics, Sections 2(a) and (e).” At the time, Respondent inappropriately addressed five students (three ESE students, one “504” student, and a “regular” education student) when she “withheld the Valentine’s Day classroom party” for “talking,” for “forgetting materials,” and for “being off task.” Respondent received a Written Reprimand on or about June 5, 2014, from the Office of Professional Standards at the District for violations of School Board policies: 5.002, Prohibition of Bullying and Harassment; 3.02, Code of Ethics; 3.01, Commitment to the Student, Principle I; and 1.013, Responsibilities of School District Personnel and Staff; as well as Florida Administrative Code Rules 6A-10.080, Code of Ethics for the Education Profession in Florida, and 6A-10.081, Principles of Professional Conduct for the Education Profession in Florida. At the time, Respondent “allowed the students to publicly assess their peers, deciding which students were creating a distraction, and which students were ‘hard-working.’” Respondent also “segregated’’ the students by sitting the “distracting” students in the back and also disparaging a student in front of the class ‘‘by suggesting that he should have learned certain skills when he was in kindergarten.” Respondent received a Written Reprimand on or about May 21, 2018, from the Office of Professional Standards at the District for “[failing] to exercise [her] best professional judgment, ethical misconduct, inappropriate interaction with students, and for failure to follow policy, rule, or directive.” At the time, Ms. Turnbull said “shut up” and “stupid” during work hours, and the students said they perceived it as being directed at them. Later on, during the Pre-Determination Meeting (PDM), Ms. Turnbull stated, “The District can go to hell,” while school administration recalled her saying “You go to hell.” Respondent received a Verbal Reprimand (Written Notation) on or about April 17, 2019, while working at Forest Hill, for her unprofessional conduct towards employees during duty hours and for failing to exercise her best professional judgment. At the time, an employee borrowed a Sharpie from Ms. Turnbull’s desk. Respondent reacted by addressing the employee “in a rude and confrontational manner” in the presence of “students and volunteers.” Later, Respondent “went after [the employee] again, continued berating her (disrespecting the personal space between both of [them]), and even mocked her.” The District’s process for determining the discipline to be imposed on Ms. Turnbull in this matter went through Ms. Evans-Paré, the director of Employee and Labor Relations for the District. She testified about the practices of her department and that Ms. Turnbull had received letters and notices of hearing, reassignments within the District, and a copy of the investigative report, which was prepared by another individual, who did not testify in the case. Ms. Evans-Paré testified that progressive discipline begins with a Verbal Reprimand with Written Notation for teachers. It then goes to Written Reprimand, suspension of any number of days, and then to termination. She believes that the employer can “jump steps” and that the CBA permitted that practice when there was “a real and immediate danger to the District, to students, to faculty, to adults, and then also if it’s a flagrant and purposeful violation of the rules.” She explained that steps were skipped in this case because of the nature of the allegation. Additionally, that it was a flagrant and purposeful violation. This is something that has been going on for years with making inappropriate comments to students, acting inappropriately. So[,] at a certain point you just move forward and progressive discipline, you can jump steps because the warnings, the other reprimands, they weren’t having any effect at all. And it was continually doing harm to students. Ms. Evans-Paré testified that the purpose of progressive discipline, and all the notices referenced in her testimony, is to ensure that the employee be told that an action is wrong and that the employee is not to repeat it, and to provide the opportunity to adjust his or her behavior accordingly. She admitted that its purpose was to give a person the opportunity to be advised that particular conduct was wrong and, therefore, be able to avoid it in the future. In her testimony, Ms. Evans-Paré stated that the recommendation of District administrators that went to the School Board in this case was for termination. She recommended termination, based on the fact that statements made by Respondent were to disabled ESE students, and what she termed the number of statements calling them “stupid” and “slow.” Ms. Evans-Paré claimed that Ms. Turnbull “did them over and over. Enough is enough.” Notwithstanding that testimony, Ms. Evans-Paré testified that only the School Board can suspend a teacher without pay. On cross-examination, she made it clear that pursuant to Florida Statutes, the ultimate decision maker concerning employee discipline, even beyond herself, is the Superintendent, and then, beyond him, the School Board. She did not testify as to any formal action taken by the School Board in this case and did not reference or provide any document which set forth any action by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding that “just cause” exists to discipline Ms. Turnbull, by upholding her prior suspension, without pay, for 15-days, and restoring all benefits and back pay that have been lost/withheld since November 21, 2019. DONE AND ENTERED this 7th day of July, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2021. Jean Marie Middleton, Esquire V. Danielle Williams, Esquire School District of Palm Beach County Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406-5869 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D., Superintendent School District of Palm Beach County 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Since February 15, 2012, Respondent has been employed by Petitioner as a “helping teacher,” also known as an education paraprofessional, at the district’s Royal Palm Exceptional School Center (Royal Palm). Respondent is assigned as a “helping teacher” to the physical education (PE) teacher, Kevin Weigand. As an education paraprofessional, Respondent is an education support employee as defined in section 1012.40, Florida Statutes. Respondent is a member of the Support Personnel Association of Lee County (SPALC). Both Petitioner and Respondent are governed by the collective bargaining agreement between Petitioner and SPALC. Royal Palm provides special education to students with disabilities identified in their Individualized Education Plans (IEPs). All of the Royal Palm students have IEPs; the majority of the students are assigned there because of behavioral issues they exhibited when attending a regular school. PE teacher Kevin Weigand described the Royal Palm student population as “mandated to attend Royal Palm for an acting-out type of behavior, a lot of physical aggression, verbal aggression.” Helping teacher Taunya Blue confirmed this description, characterizing the Royal Palm students as “disrespectful” with “anger issues.” The impetus for Petitioner’s proposed action at issue in this case was an incident that occurred in the Royal Palm gymnasium/cafeteria on March 26, 2014, during which Respondent had physical contact with a seventh-grade male student, J.B.3/ The physical altercation is depicted on a video recording shot from one of two video surveillance cameras that are at opposite ends of the gym. The aftermath of the physical altercation, in which Respondent and the student engaged in a continuing verbal exchange while adult staff interceded and attempted to separate J.B. and Respondent, can also be seen in large part on the two camera recordings, although at times the scenes of interest shift out of view. The video clips from the two surveillance cameras are on a DVD in evidence and were viewed and discussed by several witnesses at the hearing.4/ The recordings are video only; there is no audio recording. The altercation occurred near the end of the school day’s last period when the seventh-graders had PE. Respondent was on the gym’s basketball court with a few students, including J.B., a 13-year-old who is large for his age. Respondent, who played basketball in high school and college, is quite a bit larger than J.B.; Respondent is 6’7”, and a fit 225 pounds. The video depicts the students shooting baskets or playing basketball in a disorganized fashion. Respondent approached J.B. as if to play defense. Suddenly, J.B. ran off the court and Respondent chased him. Respondent pushed J.B., and then more forcefully shoved J.B. up against a wall. With both hands, Respondent grabbed J.B. by his clothing (shirt or sweatshirt), below his neck. Respondent got very near J.B., literally in his face. After just a second or two, Respondent let go and started to walk away. The scene just described was recorded from camera nine, and the video sequence runs from about 13:54:30 to 13:54:37 on the video time tracker. Also in the gym at the time of the altercation, along the same wall where Respondent momentarily pinned J.B., were a few “helping teachers” who had been sitting in chairs and chatting. At some point, the custodial staff appeared, getting ready to clean the floors. Mr. Weigand was not in the gym when the physical altercation occurred, because he had taken several students to the bathroom. By the time Respondent let go of J.B., the other staff in the gym who saw the altercation or heard the commotion approached J.B. and Respondent. Ms. Blue, a helping teacher, saw Respondent push J.B. up against the wall, and she approached Respondent to urge him to walk away and to keep him from going back to J.B. Mr. Weigand, who heard yelling just as he was returning to the gym from the bathroom, hurried over to J.B. and tried to get him to walk away and leave the gym. During the sequence when Mr. Weigand and Ms. Blue got in between J.B. and Respondent, Respondent and J.B. appeared to be engaged in a heated exchange of words, an impression confirmed by the witnesses. The video depicts Respondent taking a few steps away from J.B. several times, but then turning around and going back to where J.B. was being led away by Mr. Weigand. Respondent appeared to be directing angry words towards J.B., while Ms. Blue had her arm up towards Respondent’s chest as if to persuade him to back away. Respondent’s anger was evident from the fact that he alternated between gesturing wildly with his hands and clenching his fists. After Respondent’s initial physical confrontation with J.B., there was no more physical contact, and J.B. was not injured in the physical altercation. After the physical confrontation, Respondent’s verbal barrage directed towards J.B. was delivered in a “challenging,” aggressive tone, according to Mr. Weigand. Mr. Weigand explained that Respondent was challenging J.B. to make a move toward Respondent. On J.B.’s part, although he talked back to Respondent, it was not in the same “challenging” tone. Mr. Weigand credibly described J.B. as appearing to be in shock and taken aback by what happened. Before the end of the encounter, J.B. was crying. During the heated exchange between Respondent and J.B., one of the custodial staff radioed for a school resource officer. The officer escorted J.B. out of the gym. After J.B. was gone, and the other students and staff had left, Respondent was left with Mr. Weigand in the gym, along with the custodial staff who began mopping the floor. Respondent appeared to be pacing and continued to gesture and speak with an angry expression. The surveillance recorded video only; there is no audio recording. As to who said what to whom, the evidence was in dispute, although within the range of possibilities as to what may have been said, it does not really matter. Respondent admitted that when he suddenly took off after J.B., shoved him up against the wall, grabbed him, and got in his face, he had “lost his cool.” He was hot; he was angry; and what he did was a hot-headed act. Respondent offered conflicting explanations as to what provoked him to lose his cool. One possible explanation is Respondent’s claim that J.B. made a profane comment about Respondent’s wife: “Well your wife likes my [slang for private part].” Two weeks after the incident, while watching the video of the incident at his pre-determination hearing on April 10, 2014, Respondent stated that J.B. made that profane comment at 13:54:29 on the video time tracker, the second before Respondent took off after J.B., pushed him up against the wall, grabbed him, and got in his face. Respondent admitted at the pre- determination conference that he was very upset by this comment, and was yelling at J.B.: “Why would you try me like that? Why would you say something to me like that? . . . [H]onestly, I’m not going to lie, I was very upset with him.” Respondent did not think; he was just driven by anger to react. Respondent said that he did not even realize that he had shoved and grabbed J.B. until he saw the undeniable video evidence. Contrary to Respondent’s admission that J.B. caused him to lose his cool by making an offensive remark about Respondent’s wife, at hearing Respondent said that the comment about his wife is not what made Respondent charge after J.B. When asked what J.B. did or said to trigger Respondent’s sudden angry reaction, at first Respondent referred vaguely to his attempt to talk to J.B. over a period of time, and that J.B. was threatening another student, and then that J.B. was talking “junk” to him, such as that J.B. was going to hit him in his face if Respondent tried to play defense on J.B. Respondent summarized in equally vague fashion: “But the main thing was about the whole threatening situation.” Later, Respondent claimed that the reason he charged after J.B. and the reason he was upset was because he was unable to get through to J.B., and also because J.B. “was still going on with the threats of violence.” Still later, Respondent said that he did not mean to push J.B. up against the wall, and that when he pushed him, he was just trying to get his attention, to talk to him. Respondent’s shifting explanation casts doubt on all parts of the explanation, particularly the attempt to suggest that Respondent was responding to any kind of threat. At the pre-determination hearing, Respondent said that it was not until after the physical altercation, when he was speaking angrily to J.B. and others were trying to separate them, that J.B. first said that he was going to hit Respondent if Respondent did not get out of J.B.’s face. That version was corroborated by a witness. If such a comment was made, it was made after Respondent shoved J.B. and pinned him against the wall. Moreover, if J.B. made such a comment, at most it would have been a conditional threat; the way to obviate that threat would have been to get out of J.B.’s face. The greater weight of credible evidence established that after Respondent’s initial physical confrontation, the incident turned into an unpleasant heated exchange, but no more. Indeed, although Mr. Weigand and Ms. Blue were separating J.B. and Respondent while they continued their verbal exchange, all witnesses conceded that if J.B. had wanted to go after Respondent, he could have easily gotten by Mr. Weigand, and if Respondent had wanted to go after J.B., he could have easily gotten by Ms. Blue. The heated verbal exchange continued for about five minutes. It was a heated exchange that went on longer than it should have because the adult participant in the exchange did not act like an adult, much less like an education paraprofessional. As all witnesses testifying at hearing agreed, Respondent could have and should have de-escalated the situation by walking away. Respondent offered absolutely no legitimate justification for engaging in the physical altercation with J.B., or for continuing with an angry verbal barrage. Any suggestion that Respondent’s actions were defensible as a way to get a student’s attention for dialog about the student’s inappropriate behavior or inappropriate comments is rejected. The alternate suggestion that Respondent’s actions were understandable because of J.B.’s alleged provocative comment about Respondent’s wife is also rejected. Even if J.B. made the comment attributed to him, Respondent cannot allow himself to react the way he did. Respondent admitted that when he charged and grabbed J.B., J.B. was not a threat to him. Respondent also acknowledged that “hands on students” must be the last resort after every attempt is made to de-escalate a situation with words, as he and his colleagues are regularly trained. Despite Respondent’s training, he responded with anger and engaged in uncalled-for physical contact with a student who was admittedly no threat. At hearing, Respondent acknowledged that he acted inappropriately, saying that he regrets his actions. However, Respondent’s acknowledgement was undermined by his explanation of how he would handle the situation differently if it arose again: “I probably would have grabbed him, maybe, but probably not the pushing part. The grabbing was initially to get his attention.” In his short time at Royal Palm, Respondent had good evaluations. Mr. Weigand spoke of the good working relationship they had, which he described as a partnership. Yet Mr. Weigand was very troubled by the incident: “[T]he whole situation threw me back for a while . . . I was shook up by it when it all first happened.” As a teacher in the Lee County School District for over ten years, with nearly eight of those years spent teaching at Royal Palm, Mr. Weigand put this incident in context: “I had never in my career had something like this happen.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of misconduct in office and either terminating his employment or suspending him without pay for one year and requiring Respondent to undergo anger management counseling/training before returning to work. DONE AND ENTERED this 8th day of October, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2014.
The Issue Whether respondent Alfred Hunt, a minor child, should be expelled from the Palm Beach County School System for misconduct and disruptive behavior as a student, including numerous physical assaults on other students. Background On February 2, 1984, Thomas J. Mills, Superintendent of Schools for Palm Beach County, Florida ("petitioner"), filed an administrative Petition for Expulsion seeking the expulsion of respondent Alfred Hunt from the Palm Beach County School System. The petition alleged that the respondent was guilty of violating the Student Conduct Code of the Palm Beach County School System, Section 5.18, arising out of his participation in an unprovoked gang assault upon another student, while on the campus of Carver Middle School. As a result of this incident, the respondent was suspended for a total of 40 days, and was recommended for expulsion by the Principal of Carver Middle School. The Superintendent concurred with the Principal's recommendation and notified Mary Hayes, respondent's mother, that a recommendation for expulsion would be submitted to the School Board of Palm Beach County at its February 1, 1984, public meeting. On January 29, 1984, respondent, Alfred Hunt, requested a hearing on his proposed expulsion. Subsequently, Mary Hayes joined in, and confirmed, her son's request for a hearing. The petitioner called four witnesses and offered ten exhibits, all of which were received in evidence. Respondent Mary Hayes testified on her son's behalf, and offered-no other witnesses or exhibits. Respondent, Alfred Bunt, did not attend the hearing. The transcript of the hearing and proposed findings of fact were filed on May 17, 1984. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact Petitioner, Thomas J. Mills, as the Superintendent of Schools of Palm Beach County, Florida, has the authority to recommend to the School Board of Palm Beach County that respondent, Alfred Hunt, be expelled from the school system. Respondent, Alfred Bunt, is an eighth grade student in the Palm Beach County School System and is presently enrolled at Carver Middle School, Delray Beach, Florida. Respondent, Mary Hayes, is the mother of Alfred Hunt. Respondent, Alfred Hunt, has a past history of misconduct and disruptive behavior within the Palm Beach County School System. Specifically, while in attendance at Carver Middle School during the past year, he was disciplined for various offenses, including attacks on other students: DATE OFFENSE DISPOSITION 5/17/83 Using obscene and vulgar suspended 3 days language 5/24/83 Fighting suspended 5 days 8/17/83 Hitting, pushing, and suspended 10 days 9/13/83 chasing another student with an iron pole Constantly humming in paddled 9/16/83 class Constantly picking on paddled 9/19/83 another student Hitting another student suspended 3 days 9/27/83 9/27/83 Continual disruption of class Disrupting class suspended unknown 3 days 9/27/83 Disruption of class suspended 3 days 10/5/83 Punching another student suspended 5 days 10/13/83 10/17/83 Continual disruption of class Continual disruption of conference with student suspended 10 days class 11/3/83 Fighting suspended 3 days 11/17/83 Disrupting class paddled 11/18/83 Pushing another student paddled 12/1/83 Unprovoked attack upon suspended 10 days another student Kelly Brown, the Principal of Carver Middle School, and school counselors, tried to bring about changes in his behavior. He received special student counseling, in addition to disciplinary measures such as in-school suspensions, suspensions, and corporal punishment. For the past two years, he has been placed in Carver Middle School's Alternative Learning Lab, which provides special counseling and smaller classes for disruptive students. Despite these remedial actions, he continues to exhibit disruptive and violent behavior. All reasonable alternative measures to control or correct his behavior have been explored and exhausted by school officials. On December 2, 1983, he committed three separate acts of violence upon students at Carver Middle School. The first incident occurred at approximately 10:45 A.M. during change of classes when he, along with other students, participated in a gang-type assault upon Robert Fortner, another student. As a result of that incident, Alfred was notified that he was suspended from attending class A for 10 days. Later that day, Alfred assaulted Jay Winkler, another student, by striking him in the mouth--causing bleeding. While Principal Brown was investigating the Winkler incident, Alfred, together with several other students, assaulted Robert Fortner, another student, on the school gym field. As a result of this last assault, Principal Brown recommended that Alfred receive an additional 30-day suspension; Alfred waived his right to a hearing to contest the suspension. Because of Alfred's history of disciplinary infractions culminating in the three assaults which occurred on December 2, 1983, Mr. Brown recommended that he be permanently expelled from the Palm Beach County School System. The Superintendent of Schools subsequently concurred. Alfred's continued presence within the school system presents a threat to the safety of his fellow students and interferes with the educational process.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Alfred Hunt be expelled from the Palm Beach County School System for a period not to exceed the 1984-85 school year. DONE and ENTERED this 18th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1984. COPIES FURNISHED: JulieAnn Rico, Esquire 3323 Belvedere Road Building 503-Room 232 West Palm Beach, Florida 33402 Mary Frances Hayes 905 S.W. 11th Terrace Delray Beach, Florida 33444 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Thomas J. Mills, Superintendent of Schools for Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.
The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint dated October 25, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission ("EPC") of the Department of Education is the state agency with the authority to suspend or revoke the teaching certificate of any person holding such a certificate in the State of Florida. § 1012.795(1), Fla. Stat. The Commissioner of Education is the state official responsible for making a determination of probable cause that a teacher has committed statutory or rule violations based on the investigation conducted by the Department of Education. § 1012.796, Fla. Stat. Mr. Mitchell holds Florida Educator's Certificate No. 715339. At the times material to this proceeding, Mr. Mitchell was employed as a teacher by the Palm Beach County School Board.3 T.P. was born on March 19, 1984, and she was a student at Palm Beach Lakes High School in January 2000. T.P. met Mr. Mitchell in January 2000. At the time, Mr. Mitchell was 29 years old and was a teacher at J.F.K. Middle School. T.P. withdrew from school in June 2000. Mr. Mitchell and T.P. applied for a marriage license on July 28, 2000, and were married on September 25, 2000. On May 29, 2001, T.P. gave birth to a son, who was Mr. Mitchell's child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against Michael Mitchell. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 1st day of June, 2007.
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
