08-004819TTS Duval County School Board vs. Michael Altee Status: Closed Recommended Order on Wednesday, April 1, 2009.

Summary: Petitioner demonstrated that it had just cause to terminate Respondent`s employment as a teacher pursuant to Duval County`s progressive discipline policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4819

)

MICHAEL ALTEE, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 10-11, 2009, a duly-noticed hearing was held in

Jacksonville, Florida, before Lisa Shearer Nelson,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David J. D'Agata, Esquire

Office of the General Counsel

City Hall, St. James Building

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: Thomas A. Delegal, III, Esquire

Wendy E. Byndloss, Esquire

424 East Monroe Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue to be determined is whether grounds exist for

terminating Respondent's employment as a teacher in the Duval

County School System.

PRELIMINARY STATEMENT

This case originated when on May 17, 2007, the Duval County

Superintendent of Schools provided to Respondent a Notice of

Termination of Employment Contract and Immediate Suspension

Without Pay. The Notice alleged that the Duval County School

Board's (School Board's) Professional Practices Commission,

Office of Professional Standards, had on five occasions

investigated Respondent's conduct and had, as a result of the

most recent allegations against him, imposed Step IV of

Progressive Discipline, i.e. , termination. Respondent timely

requested a hearing pursuant to Section 120.57(1), Florida

Statutes, and the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge. On June 20, 2007, the case was docketed as DOAH Case

No. 07-2758 and assigned to the undersigned. A Notice of

Hearing issued, scheduling a hearing August 22-23, 2007.

On August 10, 2007, the School Board filed an Unopposed

Motion for Leave to File an Amended Notice of Termination of

Employment Contract and Immediate Suspension, which was granted

by Order dated August 15, 2007. The Amended Notice of

Termination of Employment Contract and Immediate Suspension

Without Pay added an allegation for teaching out-of-field

without providing documentation of completion of teaching out-

of-field credit. At the request of both parties, the matter was

continued and rescheduled for September 19-20, 2007. However,

on September 18, 2007, the School Board filed a Notice of

Voluntary Dismissal Without Prejudice and that same day an Order

Closing File issued.

On September 18, 2007, another Notice of Termination of

Employment Contract and Immediate Suspension Without Pay was

issued by the School Board, and Respondent timely filed a

request for hearing. The School Board referred the case to

DOAH, where it was docketed as Case No. 07-4754 and assigned to

Administrative Law Judge Don Davis.

The case was noticed for hearing December 5-6, 2007. On

November 15, 2007, the School Board moved for Final Summary

Judgment, and Respondent timely responded in opposition. On

November 27, 2007, Judge Davis issued an Order Closing File

which addressed the Motion for Final Summary Judgment. In that

Order, Judge Davis held, in pertinent part, that Mr. Altee was

not a qualified instructional person for whom relief could be

afforded in this proceeding.

Ultimately, Respondent filed a Petition for Review of Non-

Final Agency Action in the First District Court of Appeal, and

the matter was docketed as DCA Case No. 1D07-6534. On

August 12, 2008, the First District issued an opinion in which

it held that the Order Closing File departed from the essential

requirements of law in three respects: 1) if treated as a

Motion to Dismiss, as stated by the administrative law judge,

the Motion giving rise to the Order was not timely filed as it

was filed more than 20 days after service of the petition; 2) if

treated as a Motion to Dismiss, the administrative law judge

erred in looking beyond the four corners of the petition; and

3) the Board's Motion raised a disputed factual issue as to the

appropriate penalty or remedy for a tenured teacher who failed

to obtain educational credit to teach out-of-field. The Court

stated, "At the very least, due process requires the ALJ to hold

a hearing to afford the parties an opportunity to present

evidence on these disputed material facts." The Court granted

the petition for review, quashed the Order Closing File and

remanded with instructions that the parties be afforded an

opportunity to present evidence on the disputed material facts.

The Court's mandate issued October 8, 2008.

On September 17, 2008, the School Board issued another

Notice of Termination of Employment Contract and Immediate

Suspension Without Pay. This Notice alleged the progressive

discipline alleged in prior versions of the Notice, with

substantially more factual information. It omitted the charge

discussed by the First District Court of Appeal. The School

Board forwarded the case to the Division on September 26, 2008,

indicating that Respondent again requested a hearing and that

the School Board intended to proceed on the original violations

and not pursue the out-of-field teaching certification issue.

Due to the retirement of Judge Davis in the interim, the

case was assigned to the undersigned and noticed for hearing

December 18-19, 2009. A separate proceeding involving the same

factual basis was filed with the Division by the Education

Practices Commission (Case No. 08-4969), and the cases were

consolidated for hearing by Order dated October 24, 2008.

At this point in the proceedings, Respondent invoked his

Fifth Amendment right against self-incrimination, and sought a

protective order to avoid having his deposition taken.

Respondent's Motion for Protective Order was denied by Order

dated November 26, 2008. A Second Motion for Protective Order

and Motion to Quash Subpoena was filed, which was considered at

a telephonic motion hearing December 8, 2008, along with motions

to hold the hearing in person, as opposed to by means of

teleconferencing, and for a continuance.

As a result of the motion hearing, several things

transpired. The motion to have the hearing conducted in person

was granted, as was the request for continuance. The hearing

was rescheduled for February 10-11, 2009. The request for

protective order was denied. The parties were directed that

each petitioner could ask questions of Respondent at his

deposition, and as long as there was the threat of licensure

proceedings or a reasonable basis to believe that Respondent's

answers could subject him to criminal liability, he could invoke

the Fifth Amendment on a question-by question basis. State ex

rel. Vining v. Florida Real Estate Commission , 281 So. 2d 487

(Fla. 1974); Patchett v. Commission on Ethics , 626 So. 2d 319

(Fla. 1st DCA 1993).

On December 18, 2008, the Fifth Amendment issue was

considered for the third time. The parties were assembled to

take the previously noticed deposition of Respondent. At that

time, counsel for the Commissioner of Education indicated that

he intended to file a Notice of Voluntary Dismissal with respect

to Case No. 08-4969. Given that event, parties sought

clarification as to the applicability of the Fifth Amendment

Privilege should there be no threat of licensure action based

upon the same facts. The undersigned repeated her view of the

scope of the Fifth Amendment protection in this arena, i.e. ,

that the privilege may be invoked as long as there is the threat

of action against Respondent's license or threat of criminal

prosecution. At the hearing and by Order dated December 19,

2008, Respondent's Motion for Continuance of the Deposition, or

alternatively a third Motion for Protective Order, was denied;

Petitioner's request to extend the time for completion of the

deposition beyond the date previously noticed was denied; and

the parties were reminded that the case remained scheduled for

hearing February 10-11, 2009.

The Commissioner of Education did in fact file a Notice of

Voluntary Dismissal with Prejudice on December 18, 2008, and on

that same day an Order issued severing Case No. 08-4949 from

Case No. 08-4819 and closing the file of the Division with

respect to Case No. 08-4969.

Prior to hearing, the parties submitted a Prehearing

Stipulation that included factual stipulations that, where

relevant, have been incorporated into the Findings of Fact. At

hearing, Respondent stipulated that the discipline alleged in

the September 17, 2008, Notice of Termination as "Prior

Misconduct and Disciplinary Actions" had been imposed and that

Respondent was not challenging the basis for the prior

discipline.

At hearing, Petitioner presented the testimony of eight

witnesses and Petitioner's Exhibits 1-9, 18, 26, 32-34, 38, 41-

42 were admitted into evidence. Respondent offered the

testimony of two witnesses and Respondent's Exhibits 1-9, and

14-17 were admitted. Respondent's Exhibit 12, the deposition of

John Holochek, was marked for identification, but ruling on its

admissibility was deferred. The deposition is now admitted.

The proceedings were recorded and the Transcript was filed

with the Division on February 25, 2009. The parties timely

filed Proposed Recommended Orders which have been carefully

considered in the preparation of this Recommended Order.

Petitioner also filed, and the Respondent filed a response to, a

Motion for Assessment of Costs. The Motion is denied.

FINDINGS OF FACT

Stipulated Facts

1. Respondent, Michael Altee, is a teacher covered under

the Duval County Teacher Tenure Act, Laws of Florida, Chapter

21147 (1941), as amended (Tenure Act), and the Collective

Bargaining Agreement between Duval Teachers United and the Duval

County School Board for 2006-2009.

2. Mr. Altee is a tenured or experienced contract teacher

who can only be terminated for "cause" as defined in the Tenure

Act and the collective bargaining agreement.

3. During the spring semester, 2007, Respondent taught

history and intensive reading at Frank H. Peterson Academies of

Technology (Peterson Academy).

4. On April 11, 2007, the Peterson Academy was placed on

"lockdown" status based on an incident whereby someone brought a

gun to school. On that day, Michael Altee was absent from

school.

5. During his teaching career with the Duval County School

system, Mr. Altee received satisfactory evaluations.

6. Respondent did not dispute that he had been the subject

of disciplinary action by the School Board in the past and did

not challenge the basis for the past disciplinary actions

alleged in the September 17, 2008, Notice of Termination.

(Transcript at 58-60). Accordingly, the allegations in the

Notice regarding past conduct are accepted as fact:

A. Inappropriate Language, Comments to

Students, Sandalwood High School, SY 2000-

2001

During the 2000-2001 school year, an

investigation by DCSB's Affirmative Action

Office confirmed that you routinely made

crude and inappropriate comments which were

offensive to students under your care. For

instance, you commented that a female

student "could not afford to let her

(buttocks) get any bigger," and asked her

"why don't you bend me over and spank me."

You also stated that the brother of a

certain female student "had the brains" and

she "had the beauty," and you announced to

your class that they were all "losers" and

that you were "sick and tired" of them.

While you initially denied the comment on a

female student's buttocks, you later

rescinded the denial and admitted to saying

things in class that your students "may

misconstrue." The foregoing misconduct

result in an April 9, 2001 Reprimand Letter

from DCSB's Professional Standards Office,

which you signed.

Further, the Commissioner of Education for

the State of Florida filed an Administrative

Complaint against you on May 7, 2003, before

the Education Practices Commission ("EPC")

based on the foregoing misconduct. That

proceeding concluded with a February 4,

2004, Final Order by EPC adopting the terms

and conditions of an October 7, 2003

Settlement Agreement which included:

1. placing you on probation

(i.e., your license to teach in

Florida) from February 4, 2004

through February 4, 2006:

2. your agreement to (i) "violate

no law and fully comply with all

district school board regulations,

school rules, and State Board of

Education Rule 6B-1.006;" and (ii)

satisfactorily perform (your)

assigned duties in a competent,

professional manner";

3. your agreement to

"satisfactorily perform (your)

assigned duties in a competent,

professional manner"; and

4. the issuance of a January 23,

2004, Letter of Reprimand by the

EPC.

B. R-rated Movie (Fahrenheit 911),

Sandalwood High School, SY 2004-2005

During the 2004-2005 school year, you played

an R-rated movie to your students without

written parental permission in violation of

DCSB policies, despite your receipt of such

policies just days earlier. This violation

of DCSB policies resulted in an October 18,

2004, Reprimand Letter from Principal Bill

Gesdorf, which you signed and accepted the

disciplinary action.

C. Threats to Students, Staff, Sandalwood

High School, SY 2004-2005

During the 2004-2005 school year, you acted

in an unreasonable and aggressive manner

toward students. For instance, as a

disruptive student was escorted out of your

class and led down a hallway by a school

guard whom you summoned, you came within

close physical proximity to and circled the

student in a taunting and provocative manner

while calling the student names such as

"punk," and telling the student that you

were "his worst nightmare." On a separate

occasion, you behaved in a similarly

aggressive and hostile manner toward a

school security guard in the presence of

students and staff. You provoked and

shouted at the security guard and appeared

to invite a physical altercation with him.

Your conduct toward students and school

personnel resulted in a June 5, 2005, Letter

of Reprimand from DCSB's Professional

Standards Office (which you signed and

accepted) and a suspension of your

employment without pay for ten working days.

Additional Findings of Fact

7. The School Board is charged with the responsibility to

operate, control and supervise all free public schools within

the School District of Duval County, Florida, pursuant to

Section 1001.31, Florida Statutes.

8. Respondent is a tenured teacher with the School

District. Pursuant to his teaching contract with the School

Board, and consistent with his teaching certificate issued by

the State of Florida Department of Education, Respondent is

subject to the School Board's rules and regulations, as well as

all applicable Florida laws and rules regulating teaching in

public schools.

9. Teachers employed by the School Board are bound by a

progressive discipline policy, which requires that discipline

generally be imposed with increasingly severe penalties: first,

a verbal reprimand; second, a written reprimand; third, a

suspension without pay; and fourth, termination of employment.

The policy may be disregarded only for severe acts of

misconduct.

10. The allegations against Respondent concerning the

2006-2007 school year allege actions taken by Respondent with

respect to his first-period intensive reading class at Peterson

Academy in the second semester of the year. At the time these

events occurred, step three discipline, i.e. , an unpaid

suspension, had been imposed against Respondent for previous

conduct at a different school.

11. During the 2006-2007 school year, Respondent was

certified to teach history, but was also assigned to teach

intensive reading to freshmen at Peterson Academy. By his own

description, this assignment was "against his will."

12. Intensive reading is a class designed for those

students who have not achieved an acceptable grade on the

reading portion of the Florida Comprehensive Assessment Test,

generally referred to as the FCAT.

13. Although Respondent generally teaches history, he was

assigned to teach intensive reading for this particular school

year.

14. Several of the students in Mr. Altee's class had other

teachers in the fall semester, and were transferred to

Mr. Altee's class in the spring. The format of the intensive

reading classes was generally the same. Each student was

expected to read for approximately 15 minutes at the beginning

of the class period. The teacher would then read aloud to the

students for approximately the same length of time, and then the

students would work out of resource books (or workbooks).

Generally, the written assignments would be related to whatever

was read in class.

15. There is no accepted "list" of approved reading

material for teachers to use in the intensive reading class.

Materials were provided, but not required to be used. Teachers

are expected to use good judgment and select reading material

that is age and content appropriate for the students in the

class being taught. In the intensive reading classes students

took prior to Mr. Altee's class, teachers generally read poems

or fictional short stories.

16. Mr. Altee, however, felt that the materials provided

were boring and elected to read different materials to the

students in his class. He admitted not knowing what reading

material would really be appropriate for a freshman intensive

reading class. Included in the materials that he read were

"true crime" stories, including a story read over at least two

days about the serial killer, Ted Bundy. In conjunction with

his reading, he passed around pictures for the students to

observe.

17. The students testified that pictures shown in class

included post-execution pictures of Ted Bundy, autopsy pictures

of unidentified people, and pictures of Seung Hui Cho (Cho), the

person responsible for the Virginia Tech University killings.

Mr. Altee, on the other hand, testified that he only showed

Bundy's mug shot, a picture of him approaching the courthouse

and a picture of Bundy defending himself.

18. The readings and pictures had no discussion or written

work associated with them. No teaching point was made in

connection with these stories or pictures.

19. On or about April 20, 2007, student J.H. and his

mother complained to John Holochek, the Peterson Academy

principal, that Mr. Altee was showing inappropriate pictures in

the freshman intensive reading class, and that Mr. Altee had

made a statement about bringing a gun to school.

20. J.H. was in Mr. Altee's class for the second semester

of the school year. J.H. and Mr. Altee did not always see eye-

to-eye, and J.H. received several referrals for bad behavior

from Mr. Altee. While there was significant testimony from

several students that the referrals were not always warranted,

at least some portion of the referrals were legitimately issued.

21. Mr. Holochek contacted the Office of Professional

Standards regarding the complaint. John Williams, the Director

of the Office of Professional Standards, and Leroy Starling, the

Office's investigator, went to the Peterson Academy and

interviewed J.H. and his mother. The School Board's Office of

Professional Standards initiated an investigation, which began

on or about April 20, 2007. The investigation was handled

primarily by Leroy Starling, an investigator with sixteen years

experience with the School Board and 25 years of experience as a

homicide investigator. John Williams was also present during

the interviews taken in the investigation.

22. According to the report prepared for the

investigation, J.H. reported that Respondent began his intensive

reading class with photos and stories focusing on crime and

violence, and showed pictures of Ted Bundy both before his

execution and post mortem, as well as pictures of President John

F. Kennedy when he was assassinated and at the time of his

autopsy.

23. J.H. also reported that Respondent had made a comment

about bringing a gun to school.

24. The investigation occurred at a time immediately

following two significant incidents. On April 11, 2007, as

referenced in finding of fact four, Peterson Academy was on

"lock-down" because a student brought a gun to school.

On April 16, 2007, Virginia Tech University was the subject of

what has been described as the deadliest shooting rampage in

American history, where approximately 33 students and faculty

were killed and several more injured by a lone gunman, Seung-Hui

Cho, who then took his own life. These two events were five

days apart.

25. After speaking with J.H. and his mother, Respondent

was interviewed. Present at his interview were Holochek,

Starling, Williams, and Richard Miller, a teachers' union

representative. Respondent first denied making any statement

about guns on campus. He ultimately retreated from that

position, stating instead that he made a sarcastic comment in

response to a comment by a student, and that his words were

"twisted" by the student.

26. Respondent told investigators that J.H. was lashing

out because he wrote J.H. a disciplinary referral the day before

and the rest of the students were lying.

27. After speaking with Respondent, Principal Holochek

chose several students from the intensive reading class to

interview. At Respondent's request, student K.H. was also

interviewed. Respondent's union representative, as well as

Starling and Williams, were present for the student interviews.

28. At the first interview of the students, they were

asked two questions: 1) whether they had been shown photographs

by Mr. Altee; and 2) did they ever hear any statements made by

Mr. Altee concerning a gun. Based upon the students' answers,

Mr. Starling recovered the computer from Mr. Altee's classroom

and turned it over to James Culbert, the School Board's forensic

computer analyst, to view the computer and determine whether any

images like those described by the students had been downloaded

on the computer. Mr. Altee's District-issued laptop computer

was also retrieved.

29. Mr. Culbert searched for images using the search terms

"JFK" and "autopsy" in the computer hard drive's temporary

internet files that had been accessed using Respondent's log-in.

Mr. Culbert was able to identify the last time a particular

picture or website was accessed, but could not identify the

first time photos were viewed.

30. The investigators printed a twenty-one page internet

activity report entitled "Pictures Accessed by Alteem"

(Respondent's computer user name) which showed approximately

forty thumbnail images retrieved from Respondent's computer hard

drive. The students previously interviewed were then recalled

individually to look at the pictures and identify which, if any,

were shown to them by Mr. Altee. This packet was introduced at

hearing as Petitioner's Exhibit 6.

31. The students were asked by the investigator to write

their names next to the pictures they remembered seeing. Those

students interviewed later in the process could see the

signatures of the students who had come before them. However,

the more credible evidence is that the students were generally

not affected by the signatures of students who signed before

them. They only signed those pictures they remembered seeing in

class.

32. The pictures shown to the students included several

pictures of John F. Kennedy as well as others on an autopsy

table, with some pictures including open cranial wounds;

pictures of Cho; some movie ads; other physical wounds; someone

"shooting up" with a needle; and pictures from the JFK

assassination. Some were difficult to make out and many

appeared to be similar views of JFK during his autopsy. Some

pictures were identified by several students; some by a few; and

some not at all.

33. N.M. identified pictures 1, 6, 10, and 29. Three of

these pictures were of Cho, one was of John F. Kennedy post-

mortem. At hearing, she recalled discussions of Bundy,

autopsies, and Cho and Respondent's comment about of a gun. She

recalled that the gun comment was in connection with the Cho

shootings, although her identification of the timing of the

comment was not possible.

34. J.T. identified pictures 2, 10, 29 and 36. Two were

of Cho, and two were of JFK post-mortem. J.T. did not testify.

35. A.J. identified pictures 2, 6, 10 and 29. A.J.

testified that she recalled Mr. Altee reading about Bundy, and

talking about Cho and autopsies or executions, but did not

recall whether Mr. Altee read any stories about JFK. She did

not look at all of the pictures passed out in class, and did not

believe she was influenced by the signatures of other students.

She also recalled a comment by Mr. Altee about bringing a gun to

school, which she believed was in conjunction with the Virginia

Tech incident.

36. J.H. identified pictures 2, 6, 10 and 29 in the

initial investigation. At hearing, nearly two years later, he

also identified pictures 1, 3, 9, 12, 13, 15-20, 25, 30-32, 34-

36 and 38. Pictures 2, 3, 16, 18, 19, and 36 all appear to be

pictures of JFK post mortem that are similar views from

different angles.

37. G.H. identified pictures 2, 6, 24, 29 and 36. At

hearing, he recalled discussions of Ted Bundy, JFK, pictures of

autopsies or executions and of Cho. He also recalled a comment

by Altee about bringing guns to school in connection to the

Virginia Tech incident. G.H. was not influenced by the

signatures of other students, but was very disturbed by the

pictures. 1/

38. A.K. identified a great deal more pictures than any

other student. Although in some respects his testimony matched

that of his classmates, it also went so far beyond what his

classmates stated as to make him not credible. His testimony is

not relied on in these proceedings.

39. K.D. did not identify any of the pictures in the

packet. She did confirm that Respondent read true-crime

stories, including stories of Ted Bundy, and showed pictures of

Bundy, including a mug shot, and one post-execution picture.

She did not recall the gun statement or any discussion of JFK.

40. During the initial investigation and at hearing,

students indicated that there were other pictures observed by

the students that were not in Petitioner's Exhibit 6. Also,

several times students identified pictures of JFK as being

pictures of Bundy. 2/

41. From the evidence presented, it is more probable than

not that the students were shown pictures of Bundy, JFK and Cho.

Some, but not all, of the students were disturbed by the photos,

and all of the students remembered the story related to Bundy.

Respondent claims that he could not have shown the images to the

students because the file stamp assigned to each image shows

that the image was created at some time on April 19, 2007, after

the students left his class. April 19 was the last day

Respondent taught this class. He also contends that it was not

possible for him to have shown the Cho pictures because they

were not released in the media until April 18, 2007, after

school hours.

42. Respondent's claim is without merit. First, the file

created stamp only shows the last time a website is visited, not

the first time it is seen. Moreover, there was competent

evidence that Respondent viewed a website containing the JFK

images on his laptop as early as April 10, 2007. With respect

to the Cho pictures, Respondent admits that they were available

April 18, and that he taught intensive reading April 19. Given

the consistent testimony of the students, it is more probable

than not that Respondent showed these pictures on April 19 in

conjunction with discussion of the Virginia Tech massacre.

43. Respondent did not explain why he would be viewing JFK

autopsy photos, Bundy photos or the Cho photos at any time on

his school-issued computer if he did not intend to use them in

conjunction with a lesson other than to say, "I am a historian,

a history teacher." He did not indicate that he was using this

material for any of his history classes. In short, the viewing

and distribution of these photos had no educational component

and was not related to the goals or objectives of the class

being taught.

44. Respondent insists that the photos were properly shown

because images of violence are often portrayed in the classroom,

pointing to other sources, such as an eleventh grade history

book and Newsweek article lesson plans dealing with violence or,

for example, the charges against the Duke lacrosse team. The

difference, however, is that in Mr. Altee’s classroom, the

showing of the photos had no identified educational value. They

were not educational aids to assist in reaching any educational

objective. They were not related to any work that was geared to

improving the students’ reading.

45. In addition to showing the pictures discussed above,

the School Board has charged that Respondent made statements in

the classroom about bringing a gun to school. The preponderance

of the evidence supports the allegation that Respondent made a

comment about bringing a gun to school, although the timing of

the statement and the actual statement made is unclear.

46. Respondent claims that a day or so after the school

“lockdown,” students in his class were talking about the

incident and there was some discussion about who brought the gun

to school. During the discussion, a student said, “Altee

brought the gun.” Altee responded by saying, “Yeah, Altee

brought the gun.” Respondent insists that the statement was a

sarcastic response that no one could take seriously. It is

undisputed that Respondent was not present at school the day of

the lockdown.

47. Four students testified that the statement was made in

connection with the Virginia Tech shootings. Specifically, A.J.

testified that Altee said if he was put in the same predicament

as Cho, he probably would have brought a gun to school as well.

Others who testified that the gun statement was made in

conjunction with the Virginia Tech shootings stated that

Respondent said he would bring a gun to school and show how it

worked.

48. The timing attributed to these statements was less

clear. Hearing in this case took place nearly two years after

the events in question. A.J. placed the conversation at

approximately two weeks before Mr. Altee was removed from the

classroom. J.H. testified the comments were made the day after

the lockdown, which would have been April 12, 2007. Given the

totality of the evidence, it is more probable than not that

Altee made the statement that he could understand someone who

had been bullied bringing a gun to school and made this

statement in conjunction with the Virginia Tech killings.

49. Respondent’s reaction to the charges against him is

that the students are lying and are motivated by his

disciplinary actions against them. He claimed that he read a

variety of crime stories to the students, including stories

about John Dillinger and Al Capone, and that he read these types

of stories to avoid boredom. Respondent also points to the fact

that before being questioned in connection with this

investigation, none of the students had complained to those in

authority about the pictures or the comment about the gun.

50. Respondent’s position is simply not credible. While

he claims the students are lying, the only students he

identified that would have the motivation to lie are J.H. and

A.K. A.K.’s testimony has been discarded as generally not

credible. While J.H. admitted to having a history of referrals

from Respondent, there is no credible reason on the record for

the remainder of the students to lie about what they saw and

heard in Mr. Altee’s classroom. Not one student indicated that

they remembered stories about Al Capone or John Dillinger, but

all remembered stories about Ted Bundy. Moreover, Respondent’s

reliance on the lack of prior complaints to authorities is

misplaced. These are teenagers, not adults. The testimony

presented indicates that in at least a couple of instances,

students had complained about Altee’s behavior, either to

parents or to other school officials (but not the principal),

and were advised to “take the high road” and just try to get

along. With respect to the gun comment, the greater weight of

the evidence indicates that the comment was made in the days

immediately preceding the investigation. No earlier complaint

would have been feasible.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1),

Florida Statutes.

52. Petitioner has the burden of proving cause to

terminate Respondent's employment by a preponderance of the

evidence. Dileo v. School Board of Dade County , 569 So. 883

of the evidence means that Petitioner must prove something that

is "more probable than not." Holland v. Department of

Management Services , DOAH Case No. 02-0986 (F.O. Oct. 1, 2002).

53. Section 4 of the Duval County Teacher Tenure Act, Laws

of Florida, Chapter 21197 (1941), as amended, provides the basis

for demotions or discharge for teachers in Duval County. It

provides in pertinent part:

Causes for the discharge or the demotion of

a teacher shall be:

(a) Immoral character or conduct,

insubordination or physical or mental

incapacity to perform the duties of the

employment.

(b) Persistent violation of or a willful

refusal to obey the laws of the State of

Florida or regulations adopted by the

authority of law, relating to public schools

or the public school system.

(c) Excessive or unreasonable absence from

the performance of duties imposed by the

employment, or refusal or inexcusable

failure to discharge the duties of such

employment.

(d) Dishonesty while employed, chronic

illness, or conviction of a felony, crime or

any ordinance involving moral turpitude.

(e) Professional incompetency as a teacher;

. . . .

54. The September 17, 2008, Notice of Termination of

Employment Contract and Immediate Suspension Without Pay states

in pertinent part:

Your employment contract with the Board is

hereby terminated based upon the conduct

specified in the following charge which

amounts to cause:

CHARGE I: Violation of regulations relating

to the public school system, those

violations being:

6B1.006(3) Obligations to the student

requires that an individual

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(c) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

6B1.001(2) The educator's primary

professional concern will always be for the

student and for the development of the

student's potential. The educator will

therefore strive for professional growth and

will seek to exercise the best professional

judgment and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

55. These allegations constitute cause pursuant to Section

4(b) of the Duval County Teacher Tenure Act.

56. Petitioner has demonstrated by the preponderance of

the evidence that Respondent has violated the provisions of

Florida Administrative Code Rules 6B-1.006(3)(a) and (c) and 6B-

1.001(2) and (3), and that those violations are persistent and

willful.

57. Florida Administrative Code Rule 6B-1.006(3)(a)

requires a teacher to make a reasonable effort to protect

students from conditions harmful to learning and/or to the

student's mental or physical health or safety. In the 2006-2007

school year, Respondent read stories and showed pictures that

had no relationship to the skills he was charged with improving

and that were disturbing to some of the students in his

classroom. While he claimed that he read true-crime stories to

keep the students interested, he had no lesson integrating these

stories into the curriculum and taught nothing through them.

It appears that the stories were read and pictures shown for his

entertainment as opposed to advancing the learning of the

students under his tutelage.

58. Rule 6B-1.006(3)(c) prohibits the intentional exposure

of a child to unnecessary embarrassment or disparagement. While

there was testimony in the record regarding disparaging comments

and treatment accorded some of the students in Mr. Altee's

intensive reading class, he was not charged with such conduct

with respect to the 2006-2007 school year, and therefore this

conduct cannot form the basis for terminating his employment.

Trevisani v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Lusskin v. Agency for Health Care Administration , 731 So.

2d 67, 69 (Fla. 4th DCA 1999). The prior discipline alleged,

which Respondent did not challenge, clearly indicates such

intentional exposure, both by his boorish comments to students

during the 2000-2001 school year and aggressive and threatening

behavior toward students during the 2004-2005 school year.

59. Rule 6B-1.001(2) requires a teacher's primary

professional concern to be for the student and the development

of the student's potential, and directs a teacher to strive for

professional growth and to exercise the best professional

judgment and integrity. By reading true-crime stories and

showing related pictures that had no learning objective with

respect to intensive reading, Respondent deprived his students

of the opportunity to gain the most out of their educational

experience. Respondent admitted to not knowing what reading

material was appropriate for a ninth grade class, and apparently

made no effort to find out. He simply read stories and showed

pictures that would have shock or entertainment value. Rather

than educate, the pictures disturbed the students.

60. Likewise, comments about bringing a gun to school,

whether said in earnest or in jest, show a total lack of

judgment. This lack of judgment is especially troubling where,

as here, the students had been subjected to a lockdown at their

school, and the news of the Virginia Tech killings, within five

days of each other. While the students did not believe

Respondent actually brought a gun to school, his comments were

troubling at best.

61. Similarly, Respondent's actions demonstrate a lack of

ethical conduct in violation of Rule 6B-1.001(3). Respondent's

actions during the 2006-2007 school year are especially

troubling when viewed in light of the prior discipline for

conduct in the 2000-2001 and 2004-2005 school years. Petitioner

asserted that Respondent's reaction to disciplinary charges in

each instance should be considered in determining the

appropriate resolution in this case. To do so is unnecessary.

However, it is appropriate to look at what actions Respondent

took in the face of his prior discipline. Although on probation

with the Education Practices Commission, he continued to act in

a way inconsistent with the laws and rules governing his

profession, by showing an R-rated movie in violation of district

policy and being suspended for aggressive behavior toward both

students and staff. Clearly, Respondent was on notice that any

further violation of the laws and rules governing the teaching

profession would cost him his job. Yet in the face of this

notice, Respondent made the conscious choice to use materials of

questionable educational value that were geared not toward

advancing the reading level of his students, but instead

providing an outlet for his personal interests. His lack of

judgment is further evidenced by the cavalier statement about a

gun at a time when both students and parents would be especially

sensitive about images or references to violence, Petitioner has

demonstrated cause for termination.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered finding that the Respondent

violated Florida Administrative Code Rules 6B-1.006(3)(a) and

(c), and 6B-1.001(2) and (3), thereby demonstrating cause for

termination of his teaching contract pursuant to Section 4(b) of

the Duval County Teacher Tenure Act.

DONE AND ENTERED this 1st day of April, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] Fax Filing 921-6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2009.

ENDNOTES

1/ G.H. was visibly upset by the pictures, especially those

regarding Virginia Tech, at hearing, well after the event. He

was clearly nervous about testifying even before the photos were

displayed. However, his testimony was clear and consistent.

Respondent attempted to discredit his reaction by referring to

G.H.'s playing Mortal Kombat video games, which are rated

"mature," and are graphic in nature. However, as G.H. stated,

Mortal Kombat is a video game. The massacre at Virginia Tech

was very real. Moreover, Respondent's self-serving and

uncorroborated testimony that G.H. was emotionally unbalanced

and therefore not believable is specifically rejected.

2/ While JFK was assassinated in 1963 and Bundy committed his

crimes in the late 1970's, these children were born in the early

1990's. For them, both men would be historic figures not

generally seen in daily life.

COPIES FURNISHED:

David J. D'Agata, Esquire

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Thomas A. Delegal, III, Esquire

Wendy E. Byndloss, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

Ed Pratt-Dannals, Superintendent

Duval County Public Schools

1701 Prudential Drive, Room 509

Jacksonville, Florida 32207

Eric J. Smith, Commissioner of Education

Department of Education

325 West Gaines Street, Room 1514

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

325 West Gaines Street, Room 1244

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.