STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3172

)

ANN GRIFFIN, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice, a formal hearing was held in the above-styled case on February 11, 1985 in Miami, Florida before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas H. Robertson, Esquire

Merritt, Sikes and Craig, P.A. McCormick Building, 3rd

111 Southwest Third Street Miami, Florida 33130

For Respondent: William DuFresne, Esquire

DuFresne & Bradley, P.A.

One Biscayne Tower, Suite 1782 Two South Biscayne Boulevard Miami, Florida 33131

ISSUE

The issue presented is whether or not the Respondent should be dismissed from her employment with the Dade County School Board.

Petitioner called Mrs. Rose Ann Collum, Keith William Reilly (a minor), Anthony Rossi (a minor), Mrs. Carol Zappi, Robert Staelen, and Desmond Patrick Gray and had admitted Exhibits 1 and 2. Respondent testified on her own behalf.

The Pre-Trial Stipulation was admitted as Hearing Officer's Exhibit 1. No transcript was provided and the parties' failure to file proposed Findings of Fact and Conclusions of Law within the time stipulated therefor is deemed a waiver of that right.

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent was an employee of the School Board of Dade County under a continuing contract of employment as an elementary school teacher at Madie Ives Elementary Community School in Miami, Florida. She has taught there successfully since 1966 or 1967.

2. Beginning on or about September 1, 1983 and continuing through and including May of 1984, Respondent engaged in a course of conduct with the students assigned to her which included paddling, and on multiple occasions during this period she administered this paddling, which is in the nature of corporal punishment, to various students (more than 20) in her class.

   
   

3. The type of paddling involved was described variously by the two students who testified live at formal hearing as "did not hurt," "just an attention getter," "not bad," "only a little sting," "only when I was bad," and "I was never injured or hurt."

   
   

4. Parents were never contacted in advance of the paddlings which seem to have had a spontaneous quality. These paddlings occurred always in the Respondent's 5th Grade classroom in front of the class at the side of Respondent's desk, and a thin narrow wooden paddle was used. The paddle was applied to the child's buttocks through his/her clothing. Paddlings never occurred in the principal's office or in the presence of any other adult. Respondent made no attempt to hide what was going on, but she admitted that some students would excitedly post "look-outs" at the classroom door, so it appears that there was a belief, at least on the children's part, that the paddlings were contrary to the School Board's or principal's stated policies.

   
   

5. These paddlings occurred on an almost daily basis. Some children received a stroke once a week or every other day. It seldom occurred to the same child two days in a row. Keith William Reilly, now 12 years old, described the 1983-84 year's punishment for fighting as 4 strokes and for talking as less. Anthony Rossi, also now 12 years old, testified he was paddled 8 or 9 times in the 1983-84 school year and no one else was paddled more often than he. Most students got no more than two strokes on a single occasion. There is no evidence of physical or emotional harm to these students.

   
   

6. The majority of parents contacted by School Board Investigator Robert Staelen indicated that if they had been contacted before the paddling incidents they would have or might have given permission to paddle. The two mothers who testified live corroborated this as to their own children. At least one set of parents, Mr. and Mrs. Zappi, objected to not being noti- fied before their daughter was paddled. They experienced diffi- culty getting the child to return to school after she related to them the paddling incident or incidents.

   
   

7. There is no evidence of paddling of any child under psychological or medical treatment.

   
   

8. During Conferences for the Record, conducted by Dr. Desmond Patrick Gray, Executive Director, Director of Personnel Control, Division of Management for the School Board of Dade County, after the School Board became aware of the paddling incidents, Respondent acknowledged that she was familiar with School Board Rule 6GX13-5D-1.O7. Normally, Dr. Gray would have recommended that Respondent be given a 10 working days' suspen- sion upon the facts of the paddlings as he understood them, but thereafter, believing that Respondent had been paddling for two school years and had been previously reprimanded for similar incidents, he recommended dismissal.

   
   

9. Indeed, on January 29, 1982, Respondent had been formally reprimanded (P-2) by her then-principal, Robert D. Conk, for four apparently unrelated "events," the only pertinent one of which is phrased:

   "(1) You are frequently out of your room and students were left unsupervised. Upon your return, absences were reprimanded by your students who had misbehaved during your spanking them with a ruler or paddle."

   
   

   Respondent acknowledges that she received this reprimand, but states that it slipped her mind in her discussions with Dr. Gray because it was of a minor nature and the emphasis was not directed against paddling or corporal punishment, because Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling.

   
   

10. On or about August 22, 1984, Respondent was suspended from employment with the Dade County School Board upon grounds of incompetency, gross insubordination, and misconduct in office.

    
    

    CONCLUSIONS OF LAW

    
    

11. Upon the foregoing findings of fact, it is clear that Respondent repeatedly committed offenses against the technical boundaries of Dade County School Board Rule 6GX13-5D-1.07 (P-1 and officially recognized by prior order of the undersigned), which provides in pertinent parts as follows:

    
    

    "Subject to Florida Statutes, each teacher

    . . . shall have such authority for control

    and discipline of students as may be assigned by the principal . . . authorized the moderate

    use of physical force . . . as may be necessary

    . . . Although approval for the use of corporal punishment is not necessary for each specific instance, its use must be approved in principle before it is used. "

    
    

12. She also, on some occasions, may have used one stroke too many (4) than the rule provides (3) for 5th graders and did not correctly notify parents or have another teacher/ administrator present during paddling. However, she appears to have used the correct size paddle and correct physical target (buttocks), never acted in anger, and, with the exception of the Zappi girl, there is no indication anyone felt bad about being paddled in class. The boys who testified seemed to feel it was a fair situation.

    
    

13. Respondent's course of conduct does not meet the generally understood meaning of the terms "incompetency," or "gross insubordination," as set out in Section 231.36(4)(c), Florida Statutes, which provides:

    
    

    ". . . any member of the instructional staff who is under continuing contract may be suspended or dismissed at any time during the school year, however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or

    conviction of a crime involving moral turpitude."

14. There is not sufficient credible evidence in this case to establish the incompetency of Respondent pursuant to the criteria specified in Rule 68- 409(1).

    
    

    Rule 68-4.09(4), Florida Administrative Code, provides:

    
    

    Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order reasonable in nature and given by and with proper authority.

    
    

15. The mildness and offhanded nature of Principal Conk's January 29, 1982 reprimand is not sufficient to establish that Respondent's course of conduct out of his presence constituted "gross insubordination," but this reprimand together with all other elements of this case, particularly Respondent's admission of the use of student "lookouts" during paddling sessions indicate to the undersigned that, contrary to Respondent's assertion, blanket permission to "paddle at will" had not been delegated by Mr. Conk to Respondent, and therefore, insubordination has been proved.

    
    

16. Rule 6B-4.09(3), Florida Administrative Code, provides:

    
    

    Misconduct in office is defined as a violation

    of the Code of Ethics of the education profession so serious as to impair the individual's effectiveness in the school system.

    
    

17. Only the repetitive nature of Respondent's acts and her apparently cavalier attitude displayed toward the School Board Rule brings Respondent's behavior within the parameters of "misconduct in office." However, the facts established at the hearing are not sufficient to justify dismissal of a teacher who has demonstrated approximately 18 years of skillful service. The School Board needs to get her attention to stop this type of behavior unless exercised in strict compliance with the applicable Rule, without losing her teaching skills to the system.

RECOMMENDATION

That the School Board of Dade County enter a final order limiting the suspension of Respondent to a total of 90 working days, applying that period to the time she has already been suspended and reinstating her thereafter with any appropriate back pay and benefits.

DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1985.

COPIES FURNISHED:

Thomas H. Robertson, Esquire McCormick Bldg., 3rd Floor

111 S.W. Third St. Miami, Florida 33130

William DuFresne, Esquire

One Biscayne Tower, Suite 1782 Two South Biscayne Blvd.

Miami, Florida 33131

Phyllis O. Douglas Esquire Dade County School Board 1410 N. E. Second Ave.

Miami, Florida 33132

Dr. Leonard Britton, Superintendent Dade County Public Schools

1410 N.E. Second Ave. Miami, Florida 33132

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

AGENCY FINAL ORDER

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

SCHOOL BOARD OF DADE COUNTY,

Petitioner,

vs. CASE NO. 84-3172

ANN GRIFFIN,

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 of May 8, 1985, and the Board having heard arguments on the exceptions filed by the Petitioner herein, and response thereto by the attorney for the Respondent, and having read the record in this case and being fully advised in the premises, it is therefore ordered as follows:

1. The School Board accepts the findings of fact of the Hearing Officer with the following exceptions:

   
   

   1. the quote in paragraph 9 is misquoted from the evidence. The memorandum of January 29, 1982 (Petitioner's Exhibit 2), formally reprimanding the Respondent, states as follows:

      
      

      "(1) You are frequently out of your

      room and students were left unsupervised. Upon your return, students who have misbehaved during your absence were reprimanded by your spanking them with

      a ruler or a paddle." and

      
      

   2. the Hearing Officer's finding in paragraph 9 that Respondent testified that "Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling." is not supported by competent, substantial evidence in the record. Respondent did not testify that Dr. Conk told her to forget the reprimand as an unimportant formality or that he sent students to the Respondent for paddling.

      
      

2. The School Board accepts the conclusions of law of the Hearing Officer, specifically finding that the Respondent is guilty of insubordination and misconduct in office, except that the School Board rejects

   the conclusion, characterized as one of law, to the effect that "However, the facts established at the hearing are not sufficient to justify dismissal of a teacher who has

   demonstrated approximately 16 years of skillful service. The School Board needs to get her attention to stop this type of behavior unless exercised in strict compliance with the applicable rule, without losing her teaching skills to

   the system."

   
   

3. The School Board further rejects the recommendation of the Hearing Officer that the Respondent be suspended for 90 working days.

   
   

4. The School Board specifically finds that the Respondent was aware of the School Board's corporal punishment policy (Tr. 35, 36,42), and

5. The School Board finds that notwithstanding her knowledge of the rules, the Respondent, over the period of a year, engaged in a course of conduct involving multiple paddlings of her

students, in violation of this School Board rule (Hearing Officer's Recommended Order, p. 29,

Tr. 10-12, 16-18, 20, 25, 26, 42, 55, 61).

WHEREFORE, The School Board of Dade County, Florida, enters this its final order and (1) sustains the suspension of the Respondent, and (2) dismisses the Respondent from her employment with The School Board of Dade County, Florida, and denies any back pay to the Respondent from August 22, 1984.

DONE AND ORDERED this 8th day of May, 1985.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By

Chairman

APPEAL OF FINAL ORDER

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 12O.68(2), Florida Statutes, and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of the rendition of this Order.

Docket for Case No: 84-003172

Orders for Case No: 84-003172