STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1289

)

PHILIP ARTHUR JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on August 24, 1983, in St. Petersburg, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: J. David Holder, Esquire

BERG & HOLDER

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Lawrence D. Black, Esquire

152 Eighth Avenue, South West Largo, Florida 33540

The issue for determination at the final hearing was whether the teaching certificate of the Respondent Philip Arthur James should be suspended, revoked or otherwise disciplined for his alleged improper treatment of five profoundly mentally handicapped students while employed as a public school teacher at the Paul B. Stephens Exceptional Center in the Pinellas County School District.

At the final hearing, Christine Stich, a teacher's aide at Paul B. Stephens, Christine Kampman, a teacher's aide at Paul B. Stephens, Luanne Kusserow, an art instructor at Paul B. Stephens, a behavior specialist at Paul

1. Stephens, Rex Diem, principal at Paul B. Stephens and M. Juban Mixon, formerly Director of Personnel Services for the Pinellas County School System, testified for the Petitioner Department. Philip A. James, Debra Cox, a teacher of profoundly retarded students at Paul B. Stephens, Betty Shannon, school nurse at Paul B. Stephens, Julia Crooker, a physical therapist at Paul B. Stephens, Lee Esther Williams, an occupational therapist aide at Paul B. Stephens and Florence McGee, formerly a profoundly mentally retarded teacher at Paul B. Stephens, testified for the Respondent James.

   
   

   Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

   When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent Philip Arthur James holds Florida Teacher's Certificate number 357596, rank 3, covering the areas of mental retardation and emotionally disturbed children.

      
      

   2. During the 1982-1983 school year, the Respondent James was employed as a public school teacher at the Paul B. Stephens Exceptional Center in the Pinellas County School District.

      
      

   3. During the 1982-1983 school year, the Respondent James was assigned to teach a class of approximately six profoundly mentally handicapped students. None of the students in the Respondent's class could talk, walk, read or write. Some were incontinent and wore diapers.

      
      

   4. Howie Flood, one of the profoundly mentally retarded students in the Respondent's class, was 17 years old. Because of Howie's severe condition, it was almost impossible to elicit any type of response from him. The Respondent, however, attempted to force Howie to respond by pulling or yanking his hair on a number of occasions. The Respondent did not pull Howie's hair to punish or hurt him, but rather to attempt to get some type of positive response from the student. This type of behavior management was never approved prior to administration, by Ms. Torres, the school's behavior specialist, as required by written school policy.

      
      

   5. Della McYenna, a profoundly mentally retarded student in the Respondent's class was 17 years of age. This student was extremely sensitive and did not like being touched. On one occasion, while the Respondent was attempting to change Della's diaper on a small changing table, he placed tape on her leg. When the tape was yanked off Della's leg, the student flinched. The Respondent placed the tape on Della's leg because the student was squirming about which made it difficult to control the situation. Although the Respondent could have placed the tape on the table, out of convenience he elected to place the tape on Della's leg knowing that this student was extremely touch sensitive.

      
      

   6. Andrea Miller, a profoundly mentally retarded student in Respondent's class, had a habit of poking a finger into the corner of her eye, causing the eye to bulge out of its socket. If left untreated, this situation could ultimately result in the loss of the eye. In attempting to stop this behavior, the Respondent slapped Andrea's arm. The Respondent employed this technique to cause Andrea to stop attempting to poke out her eye. Prior to administration, this behavior management technique was never approved by Ms. Torres, the school's behavior specialist, as required by written school policy.

      
      

   7. Pamela Baker, a 17 year old profoundly mentally retarded student in Respondent's class, was confined to a wheelchair. While changing Pamela's diaper, the Respondent lightly tapped Pamela in the area of her mouth. This tap, however, was not sufficient to cause any bleeding. Apparently, Pamela

      caused the injury by hitting herself in the face when struggling with the Respondent.

      
      

   8. Although the Respondent is charged with striking Pamela on the foot with a ruler for pulling toys off a shelf, insufficient evidence was produced to demonstrate that this event occurred.

      
      

   9. After the Respondent's conduct was reported to Principal Diem in October, 1982, he was suspended from his position of employment and later dismissed by the Pinellas County School Board. Dr. M. Juhan Mixon, Director of Personnel Services, Pinellas County School Board testified that in his opinion, Respondent's effectiveness as an employee of the school board was seriously reduced based on the school board's finding that he had committed the acts charged and should be dismissed.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Section 120.57(1), Florida Statutes.

       
       

   11. Section 231.28, Florida Statutes, authorizes the Education Practices Commission to suspend the teaching certificate of any person if it is proven, inter alia, (1) that the teacher is incompetent to teach or perform his duties as an employee, (2) upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or

       (3) has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

       
       

   12. The Respondent is certified to teach in the areas of Mental Retardation and Emotionally Disturbed Children. His actions toward Howie Flood and Della McKenna and his failure to obtain prior approval before instituting behavior modification techniques, establish that the Respondent is not competent to teach profoundly mentally retarded students. The Respondent's actions demonstrate an inability to understand and appreciate the limited capacity of his students.

       
       

   13. The Petitioner's other claims, that the Respondent's personal conduct has seriously reduced his effectiveness as an employee of the school system and that the Respondent violated Rule 6B-1.06(3)(a)(e) and (f), Florida Administrative Code, by intentionally exposing his students to unnecessary embarrassment or disparagement, has intentionally violated the student's legal rights and failed to make reasonable efforts to protect his students from conditions harmful to learning, health or safety, are not supported by the record.

       
       

   14. The only evidence presented that the Respondent's personal conduct has reduced his effectiveness as an employee of the school system was the testimony of Dr. Mixon to the effect that the Respondent's effectiveness was reduced because the Pinellas County School Board had dismissed him. It is specifically concluded that to support a charge of reduced effectiveness under Section 231.28(1), Florida Statutes, something more is required than a statement by an expert witness that a teacher's effectiveness has been reduced because he has been dismissed from employment. Cf. Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977). If this were sufficient, the Legislature would have made termination by a local school board a specific ground for discipline in a proceeding involving a teaching certificate. Such

       attempted "piggybacking" of charges between the local and state proceedings is insufficient to meet the burden imposed by Section 231.28(1), Florida Statutes. In such instances, it is incumbent upon the state to demonstrate by credible testimony or evidence, the underlying basis for the opinion, so that its validity can be tested by cross-examination or the introduction of countervailing evidence. 1/

       
       

   15. Finally, insufficient evidence was introduced to establish that the Respondent intentionally exposed his students to unnecessary embarrassment or disparagement, intentionally violated his students legal rights or failed to make reasonable efforts to protect his students from conditions harmful to learning, health or safety. While the Respondent's actions toward Howie and Andrea demonstrate incompetency in dealing with profoundly mentally retarded students, such actions were not intended by the Respondent to harm or punish either student.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered suspending the teaching certificate of the Respondent Philip Arthur James for one year and placing him on probation for the following two years, during which period the Respondent be required to successfully complete additional appropriate college class work in the area of mentally and emotionally behavior management of handicapped students as prescribed by the Education Practices Commission.

DONE and ENTERED this 27th day of December, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 23rd day of December, 1983.

ENDNOTES

1/ The Administrative Complaint also alleges a violation of Rule 6B-1.01(3), Florida Administrative Code, in that the Respondent allegedly failed to achieve and sustain the highest degree of ethical conduct. Since no evidence was introduced at the final hearing concerning this charge and the Petitioner's Proposed Recommended Order does not address it, it is presumed that it has been abandoned.

COPIES FURNISHED:

J. David Holder, Esquire BERG & HOLDER

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

Lawrence D. Black, Esquire

152 Eighth Avenue, South West Largo, Florida 33540

Donald L. Griesheimer, Director Education Practices Commission Knott Building

Tallahassee, Florida 32301

Docket for Case No: 83-001289

Orders for Case No: 83-001289