06-001033 Brevard County School Board vs. Sylvester Jones Status: Closed Recommended Order on Friday, June 30, 2006.

Summary: Respondent`s statement before his math class was vulgar and contained sexual inuendo. Respondent`s explanation was not credible. Recommend Respondent`s termination for misconduct in office.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1033

)

SYLVESTER JONES , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notic e, a formal administrative hearing was

conducted before Daniel M. Kilbride, Administrative Law Judge of

the Division of Administrative Hearings on May 8 and 9, 2006, in

Melbourne, Florida .

APPEARANCES

For Petitioner: Benjamin B. Garagozlo, Esquire

3585 Murrell Road

Rockledge, Florida 32955

For Respondent: Elizabeth F. Swanson, Esquire

Egan, Lev & Siwica, P.A.

P ost O ffice Box 2231

Orlando, Florida 32 802 - 2231

STA TEMENT OF THE ISSUE S

A . Whether Respondent made inappropriate comments towards

his students wh ile in class on February 22, 2006, and further

engaged in a crude and vulgar exchange with a student in regard

to those comments.

B . If proven, do the above - described acts violate the Code

of Ethics of the Education Profession and/ or Principles of

Professional Conduct for the Education Profession in Florida.

Fla. Admin. Code Ch apter 6B - 1.

C . If proven, do the above - described acts constitute

mi sconduct in office and constitute conduct unbecoming a public

employee sufficient to warrant suspension and/or termination of

Respondent's annual contract .

PRELIMINARY STATEMENT

On March 14, 2006, the s uperintendent of the Brevard County

School District (hereinafter referred to as the

" s uperintendent") recommended to the Brevard County School Board

(hereinafter referred to as "Petitioner" or "School Board") th at

Respondent's annual contract as a member of the instructional

staff of the Brevard County Sch ool District be terminated. The

School Board supported the recommendation and voted to terminate

Respondent's annual contract. Respondent requested a formal

administrative hearing. Pursuant to Respondent's request, the

School Board filed a request with the Division of Administrative

Hearings (DOAH) for the assignment of an Administrative Law

Judge to conduct a formal de novo hearing. Discovery ensued,

and the hearing was then scheduled to commence on May 8, 2006.

At the hearing Petitioner called the f ollowing witnesses:

Respondent, as an adverse witness ; Wendy Barton ; Jacob Bashaw ;

Kathr i n e Christian ; Angela Dizzini ; Shorm a n Flanders ; Cleva u n

Fluellen ; Tara Frazier ; Kara Lewis ; Erica M ays ; Renee McAloney ;

Jonathan M c C rary ; T h om as Skelley ; Will ie Van H ooser ; Zaneta

Scott ; M . C . ; John Tuttle ; Robin Howard ; and Dr. Richard DiPatri.

A . C . was called by Petitioner, but was excused and did not

testify , as a sanction .

At the hearing, Respondent called the following witnesses:

Dr. Sharail Smith , Renee Jones, Kimbra Benson, Bernice Henry,

and Jan et Eastman, and Respondent testified in his own behalf.

Petitioner offered three exhibits , which were received in

evidence. Respondent offered six exhibits , which were received

in evidence. The three - volume Transcrip t was filed on June 5,

2006. Petitioner filed its Proposed Recommended Order on

June 1, 2006. Respondent filed his proposals on June 12, 2006.

Each of the parties ' proposals has been given careful

consideration in the preparation of this Recommended Or der.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

formal hearing, the following Findings of Fact are made:

1. At the time of his suspension in February of 2006,

Respondent, Sylvester Jones, had been employed as a math teacher

wi th the Brevard County School District for approximately seven

months and was under an annual contract for the 2005 - 2006 school

year .

2. As a first year employee and teacher, Respondent had

been assigned to Bayside High School , where John Tuttle was

princi pal.

3. Respondent was also assigned a mentor teacher,

Ms. Robin Howard, in order to assist him with any issues

pertaining to teaching. Respondent was also furnished a

document outlining the "teacher's code of conduct , " which

included inter alia the Code of Ethics of the Education

Profession and Principles of Professional Conduct for the

Education Profession of Florida .

4. The Brevard County School District had further provided

Respondent with training as to the proper method to be utilized

in a classroo m in the event a student makes disparaging remarks

to a teacher.

5 . During the school year 2005 - 2006, Respondent taught

math as a "ro a mer," moving physically from one classroom to

another during the course of the school day. The complainant,

A . C . , was a student at Bayside High School, and was a student in

Respondent's fourth period math class. The class was made up of

a high - spirited group of challenging students, 40 percent of

whom required special servi ces or special accommodations. T his

made the clas s difficult to teach.

6 . W hile Respondent was teaching at the front of the

class, on February 22, 2006, a note was being passed between

some of Respondent's students and the students from the

adjoining classroom that was being taught by a teacher by the

n ame of Scott Teter. The note was found by Teter, and he

brought it to the attention of Respondent by coming into

Respondent's classroom during the class period .

7 . Throughout the proceeding at hand, Respondent has given

differing versions as to whether T eter had read the note to

Respondent's class or whether the note was merely handed to

Respondent by Teter during the class. Initially Respondent

alleged that Teter had read the note out loud to the class.

Later in his testimony, Respondent provided a demo nstration

during the hearing, whereby he claimed that Teter had displayed

the note to the class.

8 . It is undisputed that the note referred to Respondent

as being "a fag , " and it appears that said note was handled by

and partly generated by A . C .

9 . Upon reading the note, Respondent felt that he had been

insulted and that his manhood was being attacked ; Respondent

testified that the note was an "assassination" of his character.

In response to the note, the persuasive evidence is that

Respondent made the f ollowing statement in front of his class :

"Whoever thinks that I am a fag, ask your mother to bend over,

and I will prove if I am a fag or not."

10 . One of Respondent's students, namely A . C . , then began

to vocalize his concern about Respondent's statem ent and

questioned Respondent as to whether Respondent's comment meant

that he wanted to have sexual activity with the student's

mother.

11 . During his fourth period class, Respondent denied

A. C .'s challenge, but then repeated his comment , as reflected

ab ove , to the entire class .

12 . The student, A . C . , later decided to notify his mother

regarding Respondent's statements, but due to his mother's work

schedule, did not do so until the evening of February 23, 2006.

T he student's mother felt Respondent's com ments were vulgar and

"disgusting . "

13 . Upon learning of the comments, M . C . escorted her son

to school the next day , February 24, 2006, and met with t he

school's principal, Tuttle . They related A .C. 's recollection of

the incident on February 2 2 , 2006 , to him . This is the first

time that any school official had been notified of the

allegations.

1 4 . Based on the complaint from the parent/student , Tuttle

instructed his staff to obtain statements from each of the

students in Respondent's fourth period clas s . Tuttle sought to

determine the veracity of the assertions being lev el ed against a

teacher by a parent.

1 5 . Upon obtaining written statements from students in

regard to Respondent in the classroom, the principal set up a

meeting with Respondent.

1 6 . D uring this meeting, Respondent claimed that his

remarks to his class on February 22, 2006, were as follows: "if

anyone thinks that I am a fag to have their mother bend and bow

before him."

1 7 . Respondent claimed he was trying to teach them

respect, using the "Japanese ritual" of bowing. Respondent

became very agitated during the meeting and asked for time to

write a statement . He was given until February 27, 2006 , to

provide his version of the events to the principal .

1 8 . On February 27, 2006, Responde nt submitted his written

response to the principal as to his version of events. His

statements claim that the note was presented to him by Teter and

the note had said, "Dr. Jones is a fag, don’t bend over."

Respondent then remarked to the class that, "if any one thought

he was a fag to ask his mother." Respondent stated that he had

hoped this statement would have caused the students to discuss

the matter with a parent, and maybe he would have a teacher -

parent conference. Although Respondent had advised t he

principal of having the note in his possession, he never

produced the note to the principal or any school official , n or

was it presented in this proceeding to confirm his claim as to

the contents of the letter. Further, Respondent never set up a

parent - teacher conference in this regard with any students , nor

did he refer the student, A . C . , to the principal's office for

discipline.

19 . Respondent's versions with regard to his actual

comments made to his students are in direct conflict with the

version g iven by many of his students at the hearing . The

credible testimony is that Respondent had at least twice

repeated the statement in front of the class, "If anyone thinks

I am a fag, ask your mother to bend over and I will prove if I

am a fag or not."

2 0 . Unlike the students' testimonies regarding the

comments, Respondent has changed his version of events on

several occasions. Subsequent to the February 27, 2006 ,

statement, he has modified it as attested to by Robin Howard.

In early March 2006, Responde nt told her that he had said, "if

anyone thinks that I am a fag to bow." Respondent claimed that

this was a teaching technique , but did not recall the name of

the technique. During his meeting with the s uperintendent, he

claimed that this is a technique called "metaphoric contrast . "

At the hearing, Respondent did not produce any authority which

described this technique. Instead , Respondent presented the

testimony of Dr . Sharail Jones, who is an assistant pharmacist

and a student in Respondent's bible cla ss at the Greater Blessed

Assurance Church, of which Respondent is pastor , who claimed

that Respondent uses this technique as part of his way of

teaching.

21. Respondent 's assertion that he was using the technique

of "metaphoric contrast" during the inc ident on February 22,

2006 , a term that is unknown to an experienced teacher such as

Ms. Howard, is not credible.

22 . The teacher's code of conduct specifically states that

a teacher shall be honest in all his professional dealings. See

Fla . Admin . Cod e R . 6B - 1.006. This teacher's conduct throughout

this cause has been a direct violation of this rule. At first ,

he denied the assertion and claimed it was a fabrication.

Thereafter, he has modified his version of his remarks and then

at the hearing asse rted that he does not have a present

recollection as to whether he made the remarks or not. Then,

d uring cross - examination, Respondent claim ed that he may have

said the comments as attested to by his students; however, he

does not view such a remark as in appropriate, even though his

own witnesses concede that the remarks as attested to by the

students would be inappropriate.

23. The comments were viewed by some students as having a

sexual connotation, seen as embarrassing, and w ere alarming

enough to c ause one of Respondent's student s , A . C . , to get into

a confrontation with Respondent as to whether the teacher wanted

to have sex with the student's mother. His concern was great

enough to cause the student to notify his mother.

24. As the s uperintendent testified, a teacher is a role

model and is expected to adhere to the teacher's code of

conduct. A teacher is in a position of authority. This type of

comment displays a lack of respect for the students and their

families.

25. Respondent's usage of vu lgar and sexual comments

directed to a student's mother in the classroom setting created

an atmosphere that was not conductive to learning and allowed

his student s to respond back to him with unacceptable language

and with impunity.

26. The evidence in th is proceeding has prove n that

Respondent engaged in conduct that unnecessarily embarrassed

several students and created an atmosphere detrimental to

learning in his fourth period class on February 22, 2006 .

Teaching Effectiveness

27. Respondent was forma lly evaluated on two occasions

during the 2005 - 2006 school year. Respondent's first

evaluation, dated October 26, 2005, resulted in a rating of

"Eff ective " in five categories and "N eeds Improvement" in five

categories. No "Unsatisfactory" score was assig ned to

Respondent. "Effective" is the highest performance rating that

a teacher can achieve. Respondent's annual evaluation, dated

February 14, 2006, resulted in a rating of "Effective" in eight

categories and "Needs Improvement" in two categories.

28. Compared to his performance ratings in October 2005,

Respondent's annual evaluation demonstrated a significant

improvement in teaching performance during the course of his

first year with the Brevard County School D istrict .

29. The evidence indicated that prior to the date of the

incident, Respondent worked hard at improving his teaching

skills and providing his students with a positive learning

environment.

30. Respondent had not been formally disciplined or issued

directives prior to being relieved of d uty on February 24, 200 6 .

31 . There was no evidence which indicated that Respondent

had ever used inappropriate language with his students prior to

the statements made on February 22, 200 6 .

Reputation as a Member of the Community

32. Church member s test ified that Respondent, as minister

of the Greater Blessed Assurance Church, tutored children at his

church, maintained a transitional facility for people who need

temporary homes, and is a role model to the community.

Collective Bargaining Agreement

33. P etitioner entered into a collective bargaining

agreement, called the "Agreement between the School Board of

Brevard County and the Brevard Federation of Teachers, Local

2098 [ BFT ] , Florida Education Association, AFL - CIO, Inc.,

American Federation of Teache rs, National Education Association,

2005 - 2006" (Agreement)

34. On Petitioner 's annual contract with Respondent is a

statement which indicates that Petitioner is bound by the terms

of the Agreement with the BFT.

35. Article II, Teacher Protection, Sectio n (G) of the

Agreement states:

Any disciplinary action taken against a

teacher based on a complaint by a parent or

student shall be limited to informal action

unless the matter is first reported to the

teacher in writing. Formal disciplinary

action result ing from such complaint shall

be limited to those matters which have been

reported to the teacher in writing.

Dismissal Process

36. The first notice that Respondent received of any

misconduct on his part occurred on February 24, 2006, when the

princip al held a meeting with Respondent and handed him a letter

stating that he would be removed from the classroom immediately

and placed on administrative leave with pay due to allegations

of misconduct. The action which resulted in Respondent 's being

placed on administrative leave due to allegations of misconduct

was initiated by the actions or statements of a parent and/or

student(s).

37. BFT representative, Janet Eastman's uncontroversial

testimony was that the removal of a teacher from teaching duties

an d placement of a teacher on administrative leave constitutes

disciplinary action for purposes of interpreting the Agreement.

38. Respondent received no written notice of the incident

in question prior to the disciplinary action taken on

February 24, 200 6.

39. Petitioner and Respondent both set forth the following

undisputed sequence of events:

A. On Friday, Febr uary 24, 2006, the

principal met with Respondent and notified

him of the nature of the allegations in

writing and immediately placed Responden t on

administrative leave with pay.

B. On Monday, February 27, 2006, Respondent

presented his ver sion of events, in writing,

to the princip al .

C. On March 8, 2006, Respondent received a

letter from the S uperintende nt notifying

Respondent of the charges and a

reco mmendation to the School Board that he

be terminated.

D. On March 8, 2006, John Russo of the BFT

made a written request for the investigative

files pertaining to Respondent.

E. On March 9, 2006, Russo, on behalf of

Respondent, requested a mee ting with the

S uperintendent.

F. On March 14, 2006, the meeting between

Respondent and S uperintendent took place ,

with Russo present .

G. That night, on March 14, 2006, the

School Board met and v oted to terminate the

Respondent's annual teaching contrac t.

H. On March 15, 2006, Respondent requested

a formal hearing to contest Petitioner's

tentative action . T he request was granted

and this matter was referred to DOAH on

March 22, 2006 for a de novo formal hearing.

CONCLUSIONS OF LAW

40. D OAH has jur isdiction in this proceeding pursuant to

Section 120.569 and Subsections 120.57(1) and 1012.33 (6)(a)2. ,

Florida Statutes (2004).

41. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Resp ondent committed the acts alleged in the ( proposed ) letter

of termination of the s uperintendent and the reasonableness of

the proposed disciplinary action. Ferris v. Austin , 487 So. 2d

1163 (Fla. 5th DCA 1986).

42. The standard for termination of a memb er of the

instructional staff subject to an annual contract is just cause,

including, but not limited to, misconduct in office.

§ 1012.33(1)(a), Fla. Stat. (200 5 ). Just cause for discipline,

up to and including termination, is not limited to the list of

offensive conduct set forth in Section 1012.33, Florida Statutes

(200 5 ). Dietz v. Lee County School Board , 647 So. 2d 217 (Fla.

2d DCA 1994) (applying Section 231.36, Florida Statutes, since

renumbered as Section 1012.33, Florida Statutes (200 5 ) ) .

43. C ourts have found just cause to support discharge

where the employee violates a universal standard of behavior

that an employer has a right to expect from its employees. See

Autoliv ASP, Inc. v. Department of Workforce Services , 29 P. 3d

7 (Utah Ct. App. 2 001) (finding just cause to terminate an

employee and deny benefits under the employment Security Act for

e - mail transmissions containing sexually explicit content).

44. Misconduct in office "is defined as a violation of the

Code of Ethics of the Educa tion P rofession as adopted in Florida

Administrative Code Rule 6B - 1.001(3), and the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in Florida Administrative Code Rule 6B - 1.006." See Fla .

Admin . Code R . 6B - 4.009(3).

45. Under Florida Administrative Code Rule 6B - 1.006(3), it

states , in part , that a teacher:

( a ) shall make reasonable efforts to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and /or safety;

* * *

( e ) shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

46. Petitioner must prove by a preponderance of the

evidence, the allegations of alleged misconduct in order to

demonstrate just cause for terminat ion of a teacher. See

Sublett v. Sumter County School Board , 664 So. 2d 1178 (Fla. 5th

DCA 1995).

47. Additionally, the need to demonstrate "impaired

effectiveness" is not necessary in instances where the

misconduct by a teacher speaks for itself, or it can be inferred

from the conduct in question. See Walker v. Highlands County

School Board , 752 So. 2d 127 (Fla. 2nd DCA 2000); s ee also

Purvis v. Marion County School Board , 766 So. 2d 492 (Fla. 5th

DCA 2000).

48. The comments made by Respondent were v ulgar with a

sexual connotation . E ven if not intended by him to be used in a

derogatory manner, they were a "serious and flagrant

contravention of proper moral standards ." A s such, it violated

the Code of Ethics of the Education Profession in Florida. S ee

Department of Education, Education Practices Commission v.

Ferrell , 10 FALR 4279 (1988).

49. As to Respondent's conduct and comments as alleged

herein, the evidence has proven , by a preponderance of evidence,

a violation of the Principles of Profess ional Conduct for the

Education Profession in Florida . H is conduct and comments to

his fourth period class , in response to a note written by a

student , unduly and unnecessarily exposed all of his students to

embarrassment and/or disparagement . It further created an

atmosphere that was harmful to learning and placed in jeopardy

his student's mental health and safety. See Fla . Admin . Code

R . 6B - 1.006.

50. Based on Respondent's comments to his class and to the

student, A . C . , this teacher's effectiveness within the School

District is substantially impaired.

51. Respondent's contention that the proper procedural due

process was not followed herein is without merit. See

§ 1012.33(6)(a), Fla . Stat. (2005). See also Pilla v. School

Board of Dade County , 65 5 So. 2d 1312 (Fla. 3d DCA 1995); Edgar

v. School Board of Calhoun County , 549 So. 2d 726 (Fla. 1st DCA

1989) ; and Reddick v. Leon County School Board , 405 So. 2d 757

( Fla. 1st DCA, 1981).

52. Respondent's next assertion that the protocol set

forth in t he collective bargaining agreement was not honored

herein is also lacking merit. Assuming the issue of the

contractual obligation between the BFT and the School Board is

relevant during this proceeding, Petitioner has compiled with

the provisions of said agreement. See Article VI, Section (A)

of the Amendment .

53. Respondent also seeks to have the s uperintendent

mandated to allow Respondent to sign a new annual contract for

the school year 2006 - 2007. This request is contrary to law.

See Cox v. School Board of Osceola County , 669 So. 2d 353

( Fla. 5th DCA 1996). The decision to nominate a teacher for an

annual contract solely rest s with the superintendent of a school

district.

54. Although Respondent demonstrated that he had no prior

disciplinary act ions filed against him and that he sincerely

sought to be a good and effective teacher, his actions

February 22, 2006, and thereafter, are so egregious that

termination is the appropriate sanction.

RECOMMENDATION

Based on the foregoing , it is

RECOMMENDED t hat Respondent's annual contract with the

School Board be terminated, effective March 14, 2006.

DONE AND ENTERED this 30th day of June , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law J udge

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 Hea rings

this 30th day of June, 2006 .

COPIES FURNISHED :

Harold T. Bistline, Esquire

Stromire, Bistline & Miniclier

Post Office Box 8248

Cocoa, Florida 32922

Elizabeth F. Swanson, Esquire

Egan, Lev and Siwica, P. A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

Benjamin B. Garagozlo, Esquire

3585 Murrell Road

Rockledge, Florida 32955

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940 - 6601

Daniel J. Woodring, General Counsel

Departme nt of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.