STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, ) DEPARTMENT OF EDUCATION, STATE ) OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-802

)

CLAUDIA HOLLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on September 29, 1977, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Box 1572

203 South Adams Street Tallahassee, Florida 32302

For Respondent: Ronald G. Meyer, Esquire

Suite 990, Lincoln Center 5401 West Kennedy Boulevard Tampa, Florida 33609

The hearing was initiated pursuant to a petition by the Professional Practices Council, Department of Education, State of Florida, (herein the Petitioner or the Council) filed on March 25, 1977. Said petition contained numerous allegations which allegedly constitute grounds which will be set forth hereinafter in detail, for revocation of the Respondent's teaching certificate. The Respondent by answer dated April 26, 1977, denied the allegations set forth in the petition. At the close of the hearing, the parties were allowed 14 days following receipt of the transcript to submit any proposed findings of fact, conclusions of law and/or recommendations to the undersigned for consideration. On November 16, 1977, the undersigned received Respondent's brief which has been carefully considered in preparation of this recommended order. The Council seeks to revoke the Respondent's teaching certificate based on allegations that she pushed, shoved and struck students; used abusive and profane language in speaking with students and ejected students from her classroom in unauthorized manners contrary to Rules and Regulations of the Department of Education and Sunrise Middle School, the school in which she taught. Concluding, the complaint alleges that her teaching certificate should be revoked because such misconduct engaged in by her amounted to violations of the Code of Ethics of the education profession in Florida, i.e., Section 6B-1, Rules of the State Board of Education, the Standards of Competent Professional Performance, Section

6B-5 as well as Sections 231.09, 232.26, 232.27 and thereby she is guilty of acts for which the penalty is revocation of her teaching certificate pursuant to Section 231.28, Florida Statutes.

The issues posed for decision are whether or not the Respondent engaged in the acts and/or conduct alleged herein and if so whether or not such conduct is sufficient to provide a basis for revocation of her teaching certificate.

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. The Respondent, Claudia W. Holland, is a teacher employed in the public schools of Broward County, Florida for a period of approximately 31 years and presently holds Florida Teaching Certificate number 13983, Post Graduate, Rank Two. She is presently employed in the public schools in a non-teaching capacity. To substantiate the allegations of the petition filed herein seeking revocation of the Respondent's certificate, the Petitioner called several student witnesses who were either students of the Respondent or were the alleged victims of the "unprofessional, unethical and unauthorized conduct" allegedly engaged in by the Respondent. My careful examination of the testimony of those witnesses revealed glaring inconsistencies in their testimony and for reasons hereinafter stated, cannot provide a basis to support the ultimate penalty of revocation of the Respondent's teaching certificate. This conclusion is based on an examination of the testimony of the numerous student witnesses who testified at the hearing. Without reciting their testimony in detail, I will summarize such testimony and at the outset point out that their testimony was inter alia, contradictory, evasive and generally uncreditable when the testimony is compared to that of other witnesses including that of the Respondent. A summary of pertinent portions of such witnesses' testimony follows.

   
   

2. Shirley Smith, a student of the Respondent testified that on the occasion in which Respondent allegedly pushed them into the lockers and struck two students on their legs with a ruler, the incident came about when they (the affected students), admittedly showed up for class after the bell rang. Smith had trouble unlocking her locker and was unable to unlock it until after the bell rang. When the bell rang, she appeared for class along with several other students. Respondent told those students who entered the class after the bell rang to stay outside. It appears that just about the time they were leaving the classroom, an announcement came over the public address system and those late students stayed to hear the announcement. Respondent noticing that they were not leaving the classroom, struck Shirley Smith and Kim Schwab on their legs. (Testimony of Shirley Smith) Smith testified that Respondent often used a yard stick to attract students' attention when they were unruly or were unattentive. Smith testified that when she noticed Kim Schwab's bruise on her leg, it was red. (TR 70) During her testimony, Smith testified that no bruise was left on Kim Schwab's leg. In this respect, her testimony contradicts that of a statement written by her immediately after the occurrence allegedly took place. (See Respondent's Exhibit #2, TR. 71). Likewise, the testimony of Kathryn Smith, also one of Respondent's former students who was allegedly "picked off the classroom floor approximately 18 inches by her neck and thereby scuffed her shoes when she was pushed into a locker by Respondent." Throughout her testimony, Smith testified that she was unsure of the statements to which she was testifying. She testified that approximately one minute after Kim Schwab was struck by Respondent, a black mark had appeared on her leg. In this regard,

   her testimony also contradicts that contained in a written statement by her given immediately following the incident (See Respondent's Exhibit #1).

   
   

3. Kim Schwab, also a student who was struck by Respondent while listening to an intercom message at the doorway of Respondent's classroom, testified that the bruise was all red until she went to the clinic where bactine was administered. Ms. Schwab testified that Respondent would call students "fools" when they would fail to do their class assignments or for example when they lost their work folders. She denied that Respondent engaged in any other name calling. She also corroborated the statements of other student witnesses to the effect that Respondent used the ruler from time to time to attract students' attention. She testified that she was struck after Kathy Smith was pushed. However, she did not see Kathy being pushed into the locker (when she allegedly scuffed her shoes) although she was standing right next to her.

   
   

4. On the other hand, the Respondent, a teacher in the school system for approximately 31 years testified openly, frankly and candidly about her duties as a teacher and with respect to the allegations leveled against her. She admitted as charged that she occasionally used the term "nigger" and "cracker." However, she testified that she used cliches as teaching tools and at no time intended such to derogate her students or to cast racial slurs toward them. She told of how she requested her students to engage in a discussion respecting the use of the terms "nigger" and "cracker" by having them turn to the dictionary and reflect on the meaning of such terms as they relate to the races with some reflection on the connotation that such words have traditionally meant in the past. (TR. 284 -286) She also admitted to the use of the term "jackass" on one occasion to criticize a disruptive student. She denied ever calling student "fools" although she admitted to the use of the term "silly" when a student engaged in acts and/or conduct which in her opinion amounted to such. She further denied calling students "crazy" or calling a student a homosexual as alleged. In this regard, she testified that one student called a fellow student a "gay" whereupon she asked that student what he meant. That student replied that he (meaning the other student) was a homosexual. Finally, she denied throwing books, staplers, etc. at students as alleged and the testimony of other student witnesses seem to bear her testimony out in this regard. Respecting the allegation that the Respondent used threatening gestures with a meter and yard stick and a hammer while teaching, the evidence reveals that Respondent used the sticks to tap on her desk to gain disruptive students' attention and that a hammer which had been brought to the classroom to nail decorative posters on the bulletin board was used by her in the classroom one day in a gavel-like fashion. There was no testimony adduced whatsoever to so much as imply that she used the hammer to hurt students.

   
   

5. Turning to the allegation that Respondent "administered illegal corporal punishment . . . by pushing, shoving and scratching students," the evidence falls short. Aside from the noted inconsistencies in the testimony of those students who were allegedly the victims of such behavior and/or conduct, the Respondent's version appears much more believable and creditable. For example, it is all but impossible to conclude that Respondent could even lift a student by her neck, let alone lift a student some 18 inches by her neck as testified to by the alleged victim. Moreover, it was noted that those students who were standing in the immediate vicinity of the alleged activity denied that such conduct occurred. We are therefore left with the situation where we have a substantiated allegation that Respondent either in an effort to eject students from her classroom or force them where they belong, struck one student, Kim Schwab. The Respondent does not deny that she might have struck Kim Schwab while trying to get she and other students to either take their seats or leave

   the classroom after the bell had sounded. In so doing however, there is no testimony indicating that she used more force than was necessary under the circumstances or that in fact her striking the student (Schwab) was intentional. Evidence reveals that after the incident occurred, the matter was called to her attention by the school administrator whereupon the Respondent could not even recall whether or not she in fact hit the student. However, that evening she grappled with the fact that she might have struck the student for several hours in an effort to try and recall all that actually happened. No similar incidences occurred during the remainder of the school year.

   
   

6. It was noted as Respondent's counsel points out that Section 232.27, Florida Statutes, entitled "Authority of Teacher" provides, inter alia:

   
   

   . . . each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of students.

   
   

7. This statutory pronouncement as interrupted in Williams v. Cotton, 346 So.2d 1039, 1041 (1st DCA, 1977), is that: "this statute, in authorizing - in fact requiring - a teacher to keep 'good order' in his classroom necessarily implies the power to the teacher to use reasonable physical force (not amounting to corporal punishment) to do so. Without such reasonable implied power, the requirement to keep 'good order' would be meaningless". In addition, Section 232.275, F.S., entitled "Liability of Teacher or Principal" provides:

   
   

   Except in case of excessive force or cruel and unusual punishment, a teacher or other member of the instructional staff, a principal or his designated representative, or a bus driver may not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules, regarding the control, discipline, suspension and expulsion of students.

   
   

8. This authority seemed to point out that the Respondent at least had the right to use reasonable force to insure the maintenance of a tranquil teaching atmosphere.

   
   

9. Additionally, it was noted that on one occasion the Respondent was counselled regarding her teaching methods and when corrective measures were requested of her, she took appropriate action to remedy the situation. (Testimony of Respondent and Warren Smith, Principal).

   
   

10. Chapter 231.28(1), Florida Statutes, permits the suspension and revocation of a teaching certificate when the person charged has been found guilty of personal conduct "which seriously reduces her effectiveness as an employee of the school board." Admittedly, there existed problems with respect to the Respondent's teaching practices and for which she should perhaps be reprimanded as provided in the Board's rules. However, the statutory provision upon which revocation is here sought rests on a finding that the conduct engaged

    in by Respondent is that level of conduct which "seriously reduces her effectiveness as a school board employee." While the evidence is clear that the Respondent, in an effort to eject several late students from her class, struck Kim Schwab, there was no showing by competent and substantial evidence in the record that this in any manner reduced her effectiveness as a teacher. (See for example Boyette v. State, Professional Practices Council, 346 So.2d 598 (1st DCA, 1977). For these reasons, I conclude that the Petitioner failed to meet its quantum of proof in the manner required to warrant suspension of the Respondent's teaching certificate. I shall so recommend.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subjet matter and the parties in this action. Chapter 120.57(1), Florida Statutes.

    
    

12. The parties were noticed pursuant to the notice provisions of Chapter 120, F.S.

    
    

13. Insufficient evidence was offered to establish that the Respondent's teaching certificate should be revoked pursuant to Section 231.28, F.S., as alleged in the petition for revocation filed herein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the petition filed herein be dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of November, 1977.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November.

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32302

Mr. Tom Benton

Professional Practices Council

319 West Madison Street Tallahassee, Florida 32304

Ronald G. Meyer, Esquire 5401 West Kennedy Boulevard Suite 990, Lincoln Center Tallahassee, Florida 33609

Mr. Edward Kuhn

Broward County Courthouse Room 248

201 Southeast 6th Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 77-000802

Orders for Case No: 77-000802