STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4397

)

VIRGINIA R. PURDY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on June 5, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Lane Burnett, Esquire

331 E. Union Street, Suite 2 Jacksonville, Florida 32202

For the Respondent: Was not present and was not

represented by counsel.

STATEMENT OF THE ISSUES

The issue for consideration was whether the Respondent's teacher's certificate in elementary education and middle school social studies should be disciplined because of the misconduct alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 5, 1990, Petitioner seeks to discipline the Respondent's teacher's certificate alleging several specific instances of misconduct actionab1e under Section 231.29(1), Florida Statutes. Thereafter, Respondent requested a formal hearing before the Division of Administrative Hearings, and on July 12, 1990, the file was forwarded to this office for appointment of a Hearing Officer. After receipt of the parties' responses to the Initial Order entered herein, the undersigned, on August 8, 1990, set the case for hearing in Bradenton on December 6, 1990, but after Respondent's Motion for Continuance and Abeyance was granted on November 13, 1990, the case was again set for hearing on June 5, 1991 at which time it was held as scheduled. By that last Order, the undersigned also granted Respondent's counsel's request to terminate representation.

At the hearing, Petitioner presented the testimony of Judy B. Bills, Principal of Suggs Middle School; Katherine H. McCauley, Chairman of the Department of Social studies at Suggs; and Walter C. Domalske, Director of

Personnel Services for the Manatee County Schools. Petitioner also introduced Petitioner's Exhibits 1 through 4. Respondent, who was neither present for the hearing nor represented, presented no evidence.

No transcript was filed and neither party filed a post-hearing submittal.

The hearing was scheduled to begin at 1:00 PM. Respondent was notified of the time and place of the hearing on May 28, 1991 by notice mailed to her home address. That same date, the undersigned determined from the information operator in Bradenton that Respondent still resided at that address. The undersigned did not convene the hearing until 1:20 PM on the possibility Respondent might have been unavoidably detained. She did not appear, however, and the Notice of Hearing was not returned undelivered by the postal service. It is, therefore, concluded that Respondent received the Notice of Hearing and elected not to attend.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and regulation of school teachers in Florida. Respondent, Virginia R. Purdy, was licensed as an elementary school and middle school social sciences teacher in Florida under certificate # 265007, issued on May 12, 1984, and which expired on June 30, 1989.

   
   

2. During the school year 1988 - 1989, Respondent was employed as a social studies teacher for the 6th grade at W. D. Suggs Middle School in Bradenton, Florida. She had worked there as a teacher for approximately 14 years.

   
   

3. Over the latter years of her tenure at Suggs, Respondent was involved in repeated incidents of improper use of alcohol, but under the prior administration, little if any corrective action was taken. However, with the arrival of Judy Bills as Principal in January, 1988, closer attention was paid to the Respondent's performance.

   
   

4. Ms. Bills' preliminary efforts here aimed at assisting Respondent to seek professional help for her alcohol problem. At first, Respondent resisted any outside assistance. However, her performance continued to deteriorate. She frequently appeared in class in a disorganized manner, having difficulty standing erect, and demonstrating erratic and emotional behavior.

   
   

5. Review of Respondent's record book revealed she failed to give her students any scores upon which the end of grading period grade could be based. She frequently failed to prepare lesson plans for her own use or the use of substitute teachers called in to replace her when she was absent. In that regard, during that school year she was absent 45 days, of which 31 were for hospitalization in the Genesis program as a result of her alcohol problem. In addition, she routinely failed to call in in advance of her absences which is a requirement by school policy.

   
   

6. Her teaching performance was erratic and she frequently strongly smelled of alcohol. She routinely failed to take control in her classroom and provide the appropriate leadership to her students. As a result, the students could not and did not have the appropriate course materials presented, and she was, in addition, an unsatisfactory role model.

7. Contrary to the school's rules, she frequently transported students in her private automobile to her home for swim parties. This is prohibited by the school due to the potential liability problems increased, in Respondent's case, by her alcohol problem.

   
   

8. Also, in contravention of good teaching practices, she treated her students as her equals, allowing them to comb her hair, polish her nails, and rub her back in class. While she related well to her students and, for the mcst part, they loved her, she did not maintain an appropriate teacher-student relationship with them.

   
   

9. On at least two occasions during that year, she failed to attend parent conferences, explaining that she had to do lesson planning. This was no justification and the evidence shows she frequently failed to do that in any case.

   
   

10. On one occasion, Ms. Bills had to relieve Respondent of her duties because of her confusion and disorganization in class. At that time, Respondent claimed she had merely lost her contact lenses, but because she was inebriated and in no condition to drive, another teacher had to drive her home. On another occasion, Ms. Bills went to Respondent's classroom 15 minutes after the start of the class period to find Respondent had not yet begun teaching. She was still taking roll and doing preliminary matters.

    
    

11. On the morning of September 13, 1989, Respondent had a conference with a parent. After the conference, at which Respondent was loud and disoriented and comported herself inappropriately in both action and comments, Ms. Bills, consistent with prior warnings given the Respondent, had her taken for a blood alcohol test to a lab of the Respondent's choosing. The result of that test, done on blood taken at 9:00 AM that morning, indicated a blood alcohol level of

    0.420 on a test wherein an alcohol level greater than .200 is considered clinically toxic. No traces of drugs were found on this occasion.

    
    

12. There is no direct evidence to establish that Respondent drank alcoholic beverages on school property. Evidence of an arrest for DWI, and of an admitted overdose of valium and wine are considered not probative and irrelevant since they occurred too far in the past. However, during the 1988-1989 school year, Respondent had numerous altercations with other teachers. If she felt that she or one of her students had been wronged by another faculty member, she would chastise that person in front of her students. This is inappropriate behavior.

    
    

13. In the opinion of her principal, her department chairman, and the Director of Personal Services for the school system in which she taught, Respondent's obvious drinking problem diminished her effectiveness as a teacher; her actions were harmful to her students' ability to learn and to their safety; and she was not honest in her professional dealing with faculty and staff. It is so found. In addition, her use of emotional pressure on her colleagues in an effort to get them to support her and not report her deficiencies, may have resulted in several years' delay in identifying and rectifying the problem.

    
    

14. Ms. Purdy resigned her position with the Manatee County Schools on September 20, 1989 and has not been employed within the system since that time.

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Here, the Petitioner has alleged that Respondent is guilty of several violations of the Florida statutes and the rules of the Department of Education, which render her subject to discipline under the provisions of Section 231.262(6), Florida Statutes. The statute authorizes the Education Practices Commission, upon investigation and determination of misconduct, to impose one or more of the several penalties outlined in subsections (a) through (g), thereof. Included at (a) is a denial of an application for a certificate, and, at (b), revocation or suspension of the certificate.

    
    

17. To take either action, however, the Petitioner must establish, by clear and convincing evidence, that the teacher has committed the misconduct alleged and that the misconduct constitutes an actionable violation of the pertinent statute and rules, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Here, Respondent is charged with several alleged violations including, gross immorality or moral turpitude; the use of coercive means to influence the professional judgement of colleagues; personal conduct which seriously reduced her effectiveness as a teacher; failure to make the required effort to protect hsr students from conditions harmful to learning or to their health and safety; and a lack of honesty in all her professional dealings. These allegations, if true, constitute violations of Section 231.28(1), Florida Statutes and Rule 6B- 1.006, F.A.C.

    
    

19. In the instant case, there is no evidence to demonstrate that the Respondent was guilty of gross immorality or moral turpitude as proscribed in Section 231.28(1)(e), Florida Statutes. While the possession or abuse of marijuana and other legend drugs has been held by the courts to constitute moral turpitude, the abuse of alcohol, by itself, has not. By the same token, the evidence also fails to establish that the Respondent, "used coercive means to influence the professional judgement of colleagues," (Rule 6B-1.006(5)(e), F.A.C.), or sought reprisals against individuals who reported her violations of standards, (Rule 6B-1.006(5)(m), F.A.C.). The mere involvement in arguments over a failure to protect her or the solicitation of a cover-up does not rise to an actionable level of misconduct under these rules.

    
    

20. On the other hand, the evidence clearly shows the Respondent was guilty of personal conduct which seriously reduced her effectiveness as an employee of the School Board, (Section 231.28(1)(f), Florida Statutes). Her inability to comply with fundamental requirements to report properly for school, to start class on time, and to keep proper student records; her failure to present an organized course of study to her students; and her continuing inappropriate personal relationships with her students are obvious manifestations of her diminished effectiveness.

    
    

21. In addition, her inability to refrain from appearing intoxicated before her students and her repeated transport of students in her personal vehicle against the rules and contra to the instructions she repeatedly received not to do so, constitutes an obvious failure to make the required effort to protect her students from conditions harmful to learning or to their health and safety, (Rule 6B-1.006(3)(a), F.A.C.). Further, her attempts at cover-up of her condition while at school and her efforts to have her colleagues cover up for

    her constitute a definite lack of honesty in all her professional dealings as proscribed in Rule 6B-1.006(5)(e), F.A.C. Both being violations of departmental rules, they also constitute a violation of Section 231.28(1)(h), Florida Statutes.

    
    

22. Not only her department chairman, but also her Principal and the Director of Personal Services for the School Board, obvious experts all in teacher effectiveness, have concluded Respondent's performance was unacceptable. Her teacher's certificate, which expired on September 20, 1989, should be revoked.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered in this case revoking the Respondent's teacher's certificate and her eligibility for a teacher's certificate in Florida.

RECOMMENDED this 5th day of July, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1991.

COPIES FURNISHED:

Lane Burnett, Esquire

331 E. Union Street, Suite 2 Jacksonville, Florida 32202

Virginia R. Purdy 3616 62nd Street

Bradenton, Florida 34209

George A. Bowen

Acting Executive Director Education Practices Commission

301 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL - 08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 90-004397

Orders for Case No: 90-004397