STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2107
)
ROSS PARKER, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) RALPH D. TURLINGTON, COMMISSIONER ) OF EDUCATION, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2741
)
ROSS PARKER, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for final hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on September 23, 1983, in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioners Craig R. Wilson, Esquire Department of Suite 204, 315 Third Street Education: West Palm Beach, Florida 33401
School Board of Jesse J. McCrary, Jr., Esquire Dade County: 3050 Biscayne Boulevard, Suite 300
Miami, Florida 33137
and
Phyllis O. Douglas, Esquire 1410 North East 2nd Avenue Miami, Florida 33132
For Respondent: William DuFresne, Esquire
Suite 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
By its Notice of Charges, the School Board of Dade County seeks the dismissal of the Respondent as an employee on grounds of gross insubordination and misconduct in office, an alleged violation of Sections 239.23(5), 231.36(6), 231.09(3), and 231.09(8), Florida Statutes. Specifically, it is alleged that on a number of occasions set forth more particularly in its Notice of Charges, the Respondent, while working as a teacher at Norland Elementary School and at Rainbow Park Elementary School, kept a student after school without notice to the child's parents, unlawfully struck or used unnecessary and unreasonable force on various students named in the Notice of Charges and has inflicted inappropriate and excessive corporal punishment on students in violation of the above-cited authority, as well as Section 232.27, Florida Statutes.
By its Administrative Complaint, the Education Practices Commission seeks a revocation or suspension of the Respondent's teaching certificate or other administrative sanctions pursuant to Sections 120.60, 231.261, 231.28, 231.36(2), and 231.546(2), Florida Statutes, alleging that on the same occasions, and to the same students which are the subject of the allegations in the School Board's Notice of Charges, the Respondent improperly administered corporal punishment and excessive physical force upon those students. It alleges such conduct to be in violation of Section 231.28, Florida Statutes, in that the Respondent's conduct constitutes acts of gross immorality, moral turpitude and personal conduct which seriously reduces his effectiveness as an employee of the School Board.
Because of the similarity of the allegations set forth in the respective charging documents referred to above, and by agreement of all parties, an Order was entered by the Hearing Officer consolidating these cases. All witnesses called on behalf of the School Board of Dade County, as well as all documentary evidence introduced on behalf of that Petitioner, were adopted by the Education Practices Commission in its case in chief. The Petitioners called the following witnesses: Betty Rolle; Patrick Outler; Sarah Bullard; James Moore; Lisa Wallen; Frank Freixas; Edna H. Armstrong; Willie Mae Williams; Justine Wilcox; Gloria Williams; Patricia G. Shaw; Leo Strausberg; Nicholas L. Rinaldi; Mary Sabb; Sally Blonder Andel Mickens; Jeffrey Green and Samella Gaines. By stipulation of the parties, the Petitioners' depositions of Tashanika B. Melvin, Edgrena D. Roberts, and Dr. Patrick Gray have been admitted into evidence. The Petitioner also introduced Exhibits 1 through 10, which were admitted into evidence. The Respondent called Chris Hutchinson as its witness and introduced no exhibits; however, by stipulation of the parties, the Respondent was permitted to take the deposition of Dr. Michael Gilbert, a psychiatrist, subsequent to the hearing, which deposition was admitted into evidence by stimulation.
At the conclusion of the proceeding, the parties requested a transcript of the proceeding and exercised their right to file proposed findings of fact and conclusions of law, which were timely filed on or before November 14, 1983. The parties waived the requirement of Rule 28-5.402, Florida Administrative Code, requiring rendition of the Recommended Order 30 days from the filing of the transcript.
All proposed findings of fact, conclusions of law and supporting arguments have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views stated herein, they have been accepted. To the extent that such proposed findings and conclusions and arguments asserted are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues
presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 2o.3d 383 (Fla. 5th DCA 1983).
FINDINGS OF FACT
The Respondent holds teaching certificate number 069548, Rank 3, being certified in the area of art education. At times pertinent to the Administrative Complaint and the Notice of Charges herein, the Respondent was an instructional employee with the School Board of Dade County at Rainbow Park Elementary School or Norland Elementary School. The Petitioner, School Board of Dade County, is an agency of the government of Metropolitan Dade County, a political subdivision of the State of Florida, which is charged with employing and regulating the terms and conditions of employment and conduct and practices of instructional personnel employed in its public schools in Dade County. The Petitioner, Education Practices Commission, is an agency of the State of Florida charged with the enforcement of licensure standards for teachers and regulation of the professional conduct and practices of teachers under its licensure jurisdiction.
During times pertinent to Counts I through IV of the Administrative Complaint, the Respondent was assigned to Rainbow Park Elementary School in Dade County as an art teacher. Patrick Outler was a 12-year-old student in the Respondent's art class at that school. On May 1, 1978, an altercation occurred between the Respondent and Patrick Outler in Respondent's classroom. The Respondent grabbed that student by the arm, stating that he was going to take the student to the office. When they were outside of the classroom in the open hallway, and while remonstrating with the student because of the student's conduct in class, the Respondent jerked or shook the student back and forth while holding on to his shoulders near his neck, also pushing him against the wall. The student was not noticeably injured in this episode. Sarah Bullard, a teacher's aide in an adjoining classroom, heard the disturbance, caught up with Patrick Outler, who was fleeing the Respondent's grasp and held him in her room pending the arrival of the principal. She heard the Respondent make a profane statement to the student during the course of this episode.
On May 9, 1973, the Respondent was involved in a disciplinary-related incident with a student, Tashanika Melvin. Tashanika Melvin was 5 1/2 years of age and a student at Rainbow Park Elementary School. The Respondent was her art instructor. On that date, while the student was seated at her desk during one of her classes with the Respondent, he summoned her up to the center of the blackboard, apparently to impose discipline for some departure from standards of department (the nature of which does not appear of record). The student went to the front of the class, whereupon the Respondent struck her on the knee with a ruler. This caused the student to become upset and to cry as a result of this disciplinary measure, although she was not physically injured.
Another such incident took place on September 28, 1979, involving a student by the name of Edgrena Roberts, a student in the Respondent's fourth grade art class at Rainbow Park Elementary School. The first incident occurred when the student was standing around a table with other students and a student
threw a piece of clay at or in the direction of the Respondent. The Respondent, believing that Edgrena Roberts was the culprit in the clay-throwing incident, proceeded to where she was standing, accused her of throwing the clay, which she denied, at which point the Respondent pushed the side of her head with his hand such that her head hit the wall or window frame.
The next incident involving this same student occurred when she was walking by the classroom with a friend and the friend threw a pencil into the Respondent's class. The Respondent rushed out into the corridor, seized Edgrena Roberts and shook her and then took her to the principal's office. There is no evidence that she was physically injured by this contact.
On February 12, 1979, student Frank Freixas and a friend were standing outside the Respondent's classroom. That student and his unidentified friend were uttering the phrase "Heil Hitler" in a loud tone of voice. The Respondent, upon hearing these exclamations, ran out of his classroom and across the small courtyard to where the student was standing. The Respondent grabbed Freixas by his arm and began swinging him around before releasing his arm, causing the student to fall. In falling, the student struck a sprinkler head in the lawn of the courtyard, sustaining a minor scratch. A number of other persons on the staff, as well as students, observed this incident: Edna H. Armstrong, Willie Mae Williams, Justine Wilcox, Gloria Williams and Mary Sabb.
The Respondent served in the United States Armed Forces during World War II and was wounded by hostile German fire in the European Theater in 1945. Dr. Michael Gilbert, who examined the Respondent after the hearing and testified by deposition, established that veterans, especially those who have been wounded, often react emotionally because of their war experiences.
As a result of these altercations with students, Mrs. Andel Mickens, the principal at Rainbow Park, initiated an internal investigation concerning the Respondent's suitability to remain as a teacher at her school. She ultimately recommended his termination from employment. She acknowledges that the Respondent has a favorable record as a teacher and exhibits a great deal of talent in the area of art education and is an excellent teacher from a skills standpoint. Her basis for recommending his termination was because of the incidents described above and her view regarding their reflection on the Respondent's emotional suitability to occupy a classroom instruction position.
As a result of this recommendation, Dr. Patrick Gray, Executive Director of Personnel Control of the Dade County School Board, conducted an investigation regarding these charges or incidents and as a result of that investigation, required a medical evaluation of the Respondent and issued a formal reprimand. The Respondent was admonished to avoid all future such occurrences and was transferred to another work location at Norland Elementary School. In the course of this investigation, the School Board had the Respondent evaluated by a psychiatrist before his reassignment.
On February 12, 1981, while the Respondent was an art instructor at Norland Elementary School, an incident occurred involving student Jeffrey Green. Jeffrey Green was playing with a friend after school and threw a paper airplane into Mr. Parker's classroom. He came in the classroom to retrieve it and, Mr. Parker, apparently being angry at the student, seized his fingers and bent them back, such that the student's fingers hurt for several hours thereafter.
The last incident charged, involving physical contact with students, occurred April 30, 1981, involving a student named James Moore. During this incident, James Moore was repeatedly interrupting the Respondent's class and causing disruption to the orderly conduct of the class. The Respondent called him to the front of the class evidently to remonstrate with him concerning his behavior. The student at that point continued to exhibit disruptive behavior and the Respondent pushed him out of the door of the classroom. James Moore fell to the ground or floor of the corridor outside of his own volition after only a gentle push designed to remove him from the chair. He did not fall as the result of any physical contact by the Respondent. The Respondent merely lightly pushed him out of the door to avoid further disruption of his class and told James Moore to remain outside until he could come and take him to the principal's office for disciplinary action.
Ms. Andel Mickens was the Respondent's supervisor during his tenure at Rainbow Park Elementary School. During his tenure there, the Respondent was warned on a number of occasions regarding his improper corporal punishment procedures or improper physical contact with students. Mr. Leo Strausberg was the Respondent's supervisor and principal at Norland Elementary School. On three occasions during his tenure at Norland Elementary School, the Respondent was counseled and warned regarding the necessity of and consequences of engaging in improper physical contact with students while attempting to impose discipline upon them.
Dr. Michael Gilbert, a psychiatrist, examined and evaluated the Respondent subsequent to the hearing with his deposition being stipulated into evidence. The doctor's testimony is the only testimony or evidence resulting from a psychiatric or psychological evaluation of the Respondent in evidence in this proceeding. It was thus established that the Respondent is a man of high moral and professional standards. The nature of his personality tends to be that of a perfectionist and "somewhat of a martinet" in terms of his experience and personal functioning. He tends to be a compulsive, conscientious person with a high level of aspiration and a strong compulsion to adhere to the high standards he sets for himself and others. As a result of his high standards of behavior, he tends to be less tolerant of aberrational behavior by his students and such behavior which does not comport with his own high standards presents a greater incidence of stress for the Respondent than it might in other persons or teachers who are more tolerant of substandard behavior in students. There is no evidence of an emotional or personality disorder. He is not an emotionally unstable person so as to be unfit to deal with children. The provision of a modicum of counseling or psychotherapy would enable him to gain insight into his needs, and to learn to be more tolerant of the behavior of adolescents. The Respondent is not an overly violent or routinely physically abusive individual, but rather his behavior arose from frustration in dealing with department by his students which did not measure up to his high standards.
The Respondent has never been the subject of a disciplinary proceeding such as this in the past. His evaluations and ratings in the past have been uniformly of a high order and he has been described as an excellent art teacher in terms of knowledge of subject matter and his abilities as an artist. His only difficulties in exercising his responsibilities, which culminated in the instant prosecution, have been these described altercations with students.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 12o.57(1), Florida Statutes.
The School Board has charged that the acts physical contact or use of force on the students in the above-found instances constitute a violation of Section 231.36(6), Florida Statutes (1981) , which provides that any member of the instructional staff may be suspended or dismissed at any time during the school year, provided the charges against him are based on (as pertinent hereto) misconduct in office. Additionally, Sections 231.09(3) and (8), Florida Statutes (1981), provide that pupils shall be treated kindly, considerately and humanely and that discipline shall be administered in accordance with regulations of the state board and the school board and that instructional personnel shall "conform to all rules and regulations that may be prescribed by the state board and by the school board." In that connection, Section 232.27, Florida Statutes (1981), cited as authority supporting the charges, states " . .
. the principal shall prepare guidelines for administering such punishment [corporal punishment] which identify the types of punishable offenses, the conditions under which the punishment shall he administered, and the specific personnel and the school staff authorized to administer the punishment." In this regard, School Board Regulation 6GX-13-5D-1.07 provides in pertinent part:
"A principal is empowered to delegate to one or more administrators and/or members of the instruction staff the authority to administer corporal punishment within the limits and under the conditions deemed appropriate. . . . except for those acts of misconduct which are so antisocial or
disruptive in nature as to shock conscience, corporal punishment should never be employed as initial action to deal with students' misbehavior. Corporal punishment should never he administered in anger. Corporal punishment, as used in this rule, is defined as follows: `The strokes applied as penalty for acts of misconduct administered by the principal or designee upon the student's buttocks with a paddle within prescribed dimensions.'"
There is no question that, with the exception of the instance involving student James Moore, that the Respondent did act toward the pupils involved in the instances found above in a manner exhibiting a failure to treat them kindly, considerately and humanely, and that he did not administer discipline in accordance with the regulations of the School Board cited above, of which he was clearly on notice. In all but one of these instances he administered physical force on the students during a time in which he was angry at the student and failed to follow the proper procedures outlined above for administration of corporal punishment. The evidence clearly reflects that the Respondent was on
notice of the above regulation concerning disciplinary action against students and was repeatedly warned after each infraction before the instant prosecution was undertaken by the Petitioners. Thus, his acts constitute misconduct in office for purposes of Section 231.36(6), Florida Statutes (1981), a failure to accord pupils kindly, considerate and humane treatment as required by Section 231.09(3) and (8), Florida Statutes, as well as a failure to administer discipline in accordance with the above rule.
The Education Practices Commission seeks revocation or suspension of the Respondent's teaching certificate or other administrative sanctions for the same acts, citing Section 231.09 and Section 232.27, Florida Statutes (1981), as well as Section 231.28, Florida Statutes (1981), which provides in pertinent part as follows:
The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or
for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certi- ficate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (4); or to revoke permanently the teaching certificate of any person, provided:
It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude; . . . has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; . . .
The evidence of record establishes the allegation concerning the Respondent's loss of effectiveness as a employee of the School Board. The Respondent engaged in a number of instances of physical contact or striking of students while angry at Rainbow Park Elementary School, which was known by many of his professional peers at the school and at the administrative level in the county, as well as by parents and students, some of whom are named above. He was repeatedly warned to refrain from such conduct and finally the Respondent had to be transferred to another school, the facts surrounding the reasons for that transfer also being known to many of his colleagues. In consideration of the fact that he again engaged in such conduct at his new assignment, again required repetitive warnings concerning improper physical contact with students, a situation again known to many of his instructional and supervisory colleagues and students, it has clearly been demonstrated that the Respondent has suffered a loss of his effectiveness as a teacher in the Dade County school system.
It has not been proven, however, that the Respondent engaged in any act of gross immorality or moral turpitude. The Respondent engaged in this conduct in an angered state in some instances, but with no overt intent to cause any harm of a physical or mental nature on the students involved, nor with any ulterior motive of any type. He merely struck out, pushed or otherwise contacted students in a compulsive, frustrated and sometimes angry way without using adequate judgment and reflection upon the proper course of conduct given
the above statutory and regulatory authority. The Respondent, in short, is guilty of repetitive poor judgment and the evidence adduced has not demonstrated that his conduct constitutes acts of gross immorality or moral turpitude.
In connection with this last charge, because proceedings such as these are penal in nature and may result in the loss of a valuable professional license, such cases take on enhanced significance in terms of evidentiary requirements placed upon a Petitioner such as the EPC under authority of decisions like Bowling v Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The proof must be commensurate with the potential penalty to be meted out. In the proposed order filed by counsel for the EPC, has been recommended that the Respondent's teaching certificate be permanently revoked, certainly an extremely serious statutory penalty. Thus, the proof by the Petitioner must be "as serious minded as the intended penalty is serious." Bowling, 394 So.32 at
172. See also Smith v. Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981); Henderson Signs v. Department of Transportation, 397 So.2d 769, 773 (Fla. 1st DCA 1981). Although a serious loss of effectiveness as an employee of the School Board has been established, it has not been established that the acts proven which sustain that charge also constitute acts of gross immorality or moral turpitude and to that extent the Administrative Complaint should be dismissed.
Given the enhanced standard of proof required of the prosecution in such disciplinary cases regarding teachers, the evidence is also insufficient to establish the charges concerning the alleged use of excessive force on student James Moore. It is likewise insufficient to establish violation of that portion of Section 231.28(2) concerning gross immorality or acts of moral turpitude as to that student.
It is noteworthy, concerning the issue of penalty, that the Respondent has never been the subject of any such prosecution in his past career as a teacher. Indeed he has had an exemplary record as an art teacher before the incidents which culminated in the instant prosecution, and the witnesses testifying against him for the Petitioner conceded that he is an excellent art teacher, but for his lack of judgment in dealing with disciplinary problems in the classroom. While the School Board and the EPC demonstrated that his effectiveness in the Dade County school system has been abrogated as a classroom art teacher by such repetitive conduct, it is also true that the only psychiatric testimony resulting from a psychiatric evaluation of the Respondent, that of Dr. Michael Gilbert, established that, with a modicum of psychological counseling to help him to understand the basis for his frustration with students "who do not measure up to his high standards of deportment or performance, the Respondent should be able to overcome the difficulty he has had with student behavior in his classroom. This, coupled with the proof (also emanating from Dr. Gilbert), that the Respondent is not emotionally disturbed nor so emotionally unstable as to be totally unfit as a classroom instructor, demonstrates that the extreme penalty sought by EPC is unwarranted. Rather, the Respondent should be accorded a lesser penalty against his licensure status, especially if he agrees to obtain such psychological counseling during a probationary period, after which his teaching certificate could be returned to full force and effect. His dismissal from the Dade County system where his effectiveness has been greatly abrogated is indeed appropriate, however.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is
RECOMMENDED:
That the Respondent be dismissed from employment by the Dade County School Board and forfeit all back pay. It is, further
RECOMMENDED:
That the Respondent's teaching certificate be suspended for a period of one year and thereafter be reinstated, and that the Respondent, during that period of time, obtain an appropriate course of psychological counseling designed to enable him to cope with stressful situations and to control his frustration and aberrant conduct when dealing with problems involving student behavior.
DONE and ENTERED this 8th day of March, 1984 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 8th day of March, 1984.
COPIES FURNISHED:
Craig R. Wilson, Esquire Suite 294, 315 Third Street
West Palm Beach, Florida 33401
Jesse J. McCrary, Esquire
3050 Biscayne Boulevard, Suite 300
Miami, Florida 33137
Phyllis O. Douglas, Esquire 1410 North East 2nd Avenue Miami, Florida 33132
William DuFresne, Esquire Suite 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Donald L. Greisheimer, Director Education Practices Commission Department of Education
Knott Building Tallahassee, Florida 32301
Dr. Leonard Britton Superintendent of Schools School Administration Building 1410 North East Second Avenue Miami, Florida 33132
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
RALPH D. TURLINOTON, as
Commissioner of Education, Petitioner,
vs. DOAH CASE NOS. 81-2107
82-2741
ROSS PARKER, JR.,
Respondent.
/
FINAL ORDER
Respondent, Ross Parker, Jr., holds Florida teaching certificate number 069548. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the panel pursuant to Section 120.57(1), Florida Statutes; it is attached to and made a part of this order.
A panel of the Education Practices Commission met on May 3, 1984 in Tampa, Florida to take final agency action. The Petitioner was represented by Marlene Greenfield. The Respondent was represented by Dan Bradley, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order. The Respondent's license is hereby SUSPENDED until July 15, 1984. The Commissioner of Education should not reinstate the certificate until Respondent shows that he has successfully pursued appropriate psychological counseling designed to enable him to cope with stressful situations and to
control his frustration and aberrant conduct when dealing with problems involving student behavior. After reinstatement, Respondent will be placed on probation for one (1) year, which will begin upon his employment in the classroom. Respondent shall perform satisfactorily, and shall cause his supervisor to submit quarterly reports order of his satisfactory performance to the Education Practices Commission.
DONE AND ORDERED in Tallahassee, Florida, this 10th day of May, 1984.
Richard Rich, Presiding Officer
COPIES FURNISHED:
Marlene Greenfield, Administrator Professional Practices Services
Arthur Wallberg, Esquire Attorney General's Office
Judith Brechner, General Counsel Craig Wilson, Esquire
315 Third Street
West Palm Beach, Florida 33401
William DuFresne, Esquire Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 3313
Hon. P. Michael Ruff Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Dr. Leonard Britton, Supt. Dade County Schools
1410 Northeast Second Avenue Miami, Florida 33132
Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard, Suite 300
Miami, Florida 33137
Phyllis O. Douglas, Esquire 1410 Northeast 2nd Avenue Miami, Florida 33132
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1990 | Final Order filed. |
| Mar. 08, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 11, 1984 | Agency Final Order | |
| Mar. 08, 1984 | Recommended Order | Due to excessive corporal punishment and inappropriate discipline, Respondent should be dismissed from employment, forfeiting all back pay. |
