STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1541

)

KATHY COMBA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, on August 28, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Thomas H. Robertson, Esquire

111 Southwest Third Street Miami, Florida 33130

For Respondent: Dulany J. Dupuy, Esquire

13270 North East 4th Court North Miami, Florida 33161

This matter arose on Petitioner's suspension of Respondent on allegations that she struck three students while employed by Petitioner as a teacher's aide. Charges of criminal battery and attempted cover-up were voluntarily dismissed by Petitioner at the hearing. The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner as a teacher's aide in a mentally handicapped classroom for the past three years. Prior to her employment, Respondent, who is the mother of a handicapped child, worked as a volunteer classroom aide. She is active in the Parent Teacher Association and is a girl scout leader.

   
   

2. Respondent attended an orientation session at the beginning of the

   1983-84 school year where school policies were discussed. However, she does not remember any explanation of corporal punishment policy and did not receive a copy of Petitioner's rules on this subject. Respondent has had no formal training in education and is not certificated.

3. Respondent recalls a discussion at the beginning of the school year with the special education teacher who was her supervisor. The teacher advised Respondent not to hit Robert Pelligrino because his sister would likely take legal action. The teacher concedes that she made a special point of telling Respondent not to strike Robert Pelligrino, but claims to have forgotten everything else about the discussion including the reason for this unusual warning.

   
   

4. On or about February 3, 1984, while engaged in her duties as a teacher's aide, Respondent slapped the student Robert Pelligrino in the face. She struck the child with sufficient force to leave a mark which was visible for a brief period following the incident.

   
   

5. Although Petitioner presented no evidence to establish that Respondent struck Robert Pelligrino, she readily admitted doing so. However, Respondent claims she was merely trying to correct his finger-sucking habit. This alibi is rejected, in that events leading up to the incident provoked Respondent and caused her to believe that Robert needed to be disciplined while his unacceptable behavior was fresh in his mind.

   
   

6. Robert, who is mentally handicapped, tripped a smaller, handicapped student who fell and was injured as a result of Robert's action. Respondent first went to the aid of the injured student and immediately thereafter slapped Robert.

   
   

7. The two other incidents were attested to by Robert's sister, Mrs. Donna Ferrell, who was serving as a volunteer aide on February 1, 1984. Mrs. Ferrell and Respondent were both working with a group of handicapped children on the occasion of a class field trip.

   
   

8. Mrs. Ferrell observed Respondent beating on the chest of one student in an effort to re-attach a "stick-on" name tag which the child had removed.

   Later, on the bus, Mrs. Ferrell observed Respondent reach out and strike or tap a student on the top of his head to gain his attention. This evidence did not establish that Respondent injured either student, that she used undue force, or that she was attempting to punish either of them.

   
   

   CONCLUSIONS OF LAW

   
   

9. Subsection 231.36(6) (b), Florida Statutes (1983)provides in part:

   
   

   (b) Any member of the district administrative or supervisory staff, . . . may be suspended or dismissed at any time during the term of the contract; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspends him without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. . . .

10. Rule 6B-1.06, Florida Administrative Code, provides in part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate. (Emphasis added)

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          
          

11. Rule 6B-4.09, Florida Administrative Code, provides in part:

    
    

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

    6B-1.01, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, F.A.C., which is so serious as to

    impair the individual's effectiveness in the school system. (Emphasis added)

    
    

12. Respondent is charged with misconduct in office under Section 236.31, Florida statutes, 1/ and under the quoted provisions of Chapter 6B-1, Florida Administrative Code. Chapter 6B-1 is entitled "The Code of Ethics of the Education Profession in Florida," and is applicable to "any individual holding a valid Florida teacher's certificate."

    
    

13. Respondent does not hold a teacher's certificate and therefore cannot properly be charged under the above rules. Even if Respondent were held to the same standards of conduct as a certificated teacher, a single lapse in otherwise acceptable behavior does not meet the rule definition of "misconduct in office" which must be "so serious as to impair the individual's effectiveness in the school system."

14. Similarly, the single incident was not sufficiently serious to be considered either "immorality" or a breach of an educator's duty to protect student health and safety under Rules 6B-4.09(2) and 6B-1.06(3), Florida Administrative Code. In any event, these rules are not applicable to Respondent for reasons previously stated.

15 Respondent was further charged with having "actual knowledge" of and intentionally violating Petitioner's Rule 6GX13-5D-1.07. It was not demonstrated that Respondent had actual knowledge of this rule or its contents, or that she intentionally violated this rule. Further, neither the rule nor its specific language were produced during these proceedings, nor was official notice requested. See Section 90.202, Florida Statutes (1983). Therefore, no finding that Respondent violated any of its provisions, knowingly or otherwise, can be made.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order dismissing its charges against Respondent.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The DeSoto Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1984.

ENDNOTE

1/ Petitioner's notice of charges did not specify a statutory subsection. Rather, Respondent was charged broadly under Section 231.36, Florida Statutes, which contains separate disciplinary provisions for instructional staff.

However, Subsection 231.36(1) (a) requires that "Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract...[which] shall contain provisions for dismissal. . ." Respondent is neither certificated nor does she hold such a contract. Therefore, she cannot be considered a member of the instructional staff and must be charged here under the provisions applicable to the administrative staff.

COPIES FURNISHED:

Thomas H. Robertson, Esquire

111 Southwest Third Street Miami, Florida 33130

Dulany J. Dupuy, Esquire 13270 N.E. 4th Court

North Miami, Florida 33161

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132

=================================================================

AGENCY FINAL ORDER

================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

SCHOOL BOARD OF DADE COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 84-1541

KATHY COMBA,

Respondent.

/

FINAL ORDER OF THE

SCHOOL BOARD OF DADE COUNTY, FLORIDA

THIS CAUSE coming on to be heard before the SCHOOL BOARD OF DADE COUNTY, FLORIDA, at its regular meeting on November 7, 1984, and the Board having heard arguments on the exceptions filed by the Petitioner herein and responses thereto by the attorneys for the Respondent, and having read the record in this case, and being otherwise fully advised in the premises, it is therefore:

ORDERED AS FOLLOWS:

1. The Findings of Fact made by the Hearing Officer, R. T. Carpenter in his Recommended Order signed September 17, 1984, are hereby accepted and made a part hereof, with the following additions:

   
   

   1. While accepting factual finding in number two, that Respondent did not remember any explanations or receive a copy of the School Board Rules, it is clear from the testimony of Susan Donner, that the Respondent was present when

      the School Board Rules on Corporal Punishment were discussed, and that Respondent had available to her a copy of the Teacher Manual containing this rule. Respondent testified that she had been instructed at the beginning of the year in August, to read this manual. She testified that as of February, at the time of the incidents herein, she had not accomplished this task.

      
      

   2. While accepting factual finding number eight, the School Board also finds the force used in both of the incidents was unnecessary. It is not necessary to "beat" a name tag on to a student's chest to attach it. Also, the striking of a student on the head is an unnecessary use of force when, as Respondent testified, there is nothing to prevent her from inoffensively touching or grabbing the student's arm or shoulder. This unnecessary use of force violates the State's statutory definition of Corporal Punishment. Florida Statute Section 228.041.

      
      

2. The School Board rejects the Conclusions of Law of the Hearing Officer, except as indicated hereinbelow:

   
   

   1. The Hearing Officer's findings that the rules contained in Chapter 6B- 1, Florida Administrative Code, do not apply to this Respondent, is in contradiction to Florida Statute Section 231.141. That Statute provides, in pertinent part that:

      
      

      ". . . [A] teacher aide, while rendering services under the supervision of a certificated teacher, shall be accorded the same protection of laws as that accorded the certified teacher."

      
      

      A teacher aide, such as the Respondent, is then entitled to the protection offered a teacher under Florida Statute Section 231.36 and may only be disciplined for just cause as described in that statute. The definitions contained in the Rules, Chapter 6B-1, Florida Administrative Code, would then be applicable to the Respondent, as if the Respondent was certified.

      
      

   2. The Hearing Officer's conclusion that "A single lapse in otherwise acceptable behavior", is not sufficient for discipline is erroneous. In view of the Hearing Officer's finding of three separate incidents, and the Board's finding that the last two incidents involved unnecessary force, there was more than a single lapse. The Board concludes that a single incident of unnecessary striking of a child is a breach of an educator's duty to protect the child from harm. 6B-1.06(3) Florida Administrative Code. The Board also concludes that in a case such as this, repeated incidents of striking a child is so serious as to impair the individual's effectiveness in the school.

      
      

   3. The Hearing Officer's conclusion of a single incident being insufficient to constitute immorality is also erroneous. The Board concludes that these three incidents, witnessed by other educators and by a member of the family of a student, are "inconsistent with the standards of public conscience and of good morals". 6B-4.09(2) Florida Administrative Code. The actions further were sufficiently notorious to bring the Respondent into public disgrace and/or disrespect.

      
      

3. The School Board accepts that Respondent was not shown to have actual knowledge of School Board Rule 6Gx13-5D-1.07 and accepts the conclusions therein.

4. The School Board, having reviewed the entire record and testimony of this case is of the present opinion that the thirty (30) day suspension originally imposed is excessive and that a ten (10) day suspension is more appropriate.

WHEREF0RE, The School Board of Dade County, Florida rejects the recommendation of the Hearing Officer in this case and orders that:

1. KATHY COMBA be and is hereby suspended for a period of ten (10) days commencing April 11, 1984, and

   
   

2. KATHY COMBA shall receive no compensation for the period of ten (1O) days commencing April 11, 1984, from The School Board of Dade County, Florida.

DONE AND ORDERED this 7th day of November, 1984.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By Chairman

Docket for Case No: 84-001541

Orders for Case No: 84-001541