STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4713

)

KAY KENNEDY, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 5, 1991, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert G. Walker, Esquire

Holloway & Walker

250 North Belcher Road Suite 101

Clearwater, Florida 34625

For Respondent: Lawrence D. Black, Esquire

152 Eighth Avenue, S.W. Largo, Florida 34640

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Kay Kennedy, from her employment as a teacher for three days without pay on charges contained in July 5, and September 7, 1990, letters from the School Superintendent, Scott N. Rose. The July 5 letter lists as charges: (1) "on at least two occasions, you made vulgar and demeaning remarks to students"; (2) "you roughly handled a student in a disciplinary manner"; and (3) "you have been cautioned and reprimanded for this behavior in the past." The September 7 letter adds the charges that the Respondent: (1) "stared at approximately nine female students making them feel uncomfortable as they dressed or undressed"; (2) "touched two students inappropriately"; (3) "coerced students to write statements purporting to retract their allegations"; and (4) "misrepresented the truth to [her] administrator concerning the incidents." The letters charge that the allegations constitute misconduct in office and gross insubordination, grounds for discipline under Section 231.36(4), Fla. Stat. (1989).

PRELIMINARY STATEMENT

At the final hearing, the School Board called 17 witnesses: former School Superintendent Rose; the principal at the school during the year the incidents are alleged to have taken place; by deposition, the principal at the school in prior years during which the Respondent taught there; the former Director of Personnel Services for the School District; and 13 students (one of whom was not permitted to testify). The School Board also had 13 exhibits--numbered 1, 2, 5,

7 through 9, and 10 through 16--admitted in evidence. (Petitioner's Exhibit 15 was the transcript of the deposition of the former principal.) Petitioner's Exhibits 4 and 6 were identified but were not introduced in evidence. 1/ The Respondent testified in her own behalf, and the parties agreed that the Respondent would be permitted to take post-hearing depositions and have the deposition transcripts admitted in evidence in lieu of live testimony. Proposed recommended orders were required to be filed within ten days after the filing of the deposition transcripts.

On March 4, 1991, the Respondent filed the transcripts of the depositions of four witnesses--three of the Respondent's former teaching colleagues, and one of the Respondent's former students. On March 13, 1991, the Respondent filed a post-hearing argument in lieu of a proposed recommended order. The School Board did not make a timely post-hearing filing.

FINDINGS OF FACT

1. The Respondent, Kay Kennedy, was one of two physical education (PE) teachers at the Clearwater Comprehensive Middle School in the Pinellas County School District during the 1989/1990 school year. She is on a continuing teaching contract with the Pinellas County School Board, and is teaching PE at another area middle school during the 1990-1991 school year. She holds a master's degree and has some credits towards a Ph.D. She has 22 years of teaching experience and is certified to teach in Florida, as well as in Illinois and California (secondary and junior college).

   
   

2. While teaching in Pinellas County in years prior to the 1989/1990 school year, the Respondent has been accused of using vulgar and demeaning language towards students and vulgar language in the presence of students, of rough handling of students, and of misrepresenting facts to administration. As to the alleged use of vulgar and demeaning language towards students and the alleged rough handling in prior years, the charges were not proven. 2/ It was, however, proven that the Respondent was reprimanded and warned that the allegations, if proven, would constitute misconduct.

   
   

3. As to the charge that the Respondent misrepresented facts to administration in years prior to the 1989/1990 school year, the evidence proved that in October, 1986, the assistant principal at Clearwater Comprehensive, Thomas M. Crook, confronted the Respondent with a student's allegation that the Respondent confiscated a camera from the student and used the camera to take pictures. The Respondent admitted confiscating the camera but, on two separate occasions, denied taking pictures with it. After being confronted with evidence that she did, the Respondent admitted that she had indeed taken pictures with the camera and was reprimanded.

   
   

4. As to the charge that the Respondent used vulgar language in the presence of students in years prior to the 1989/1990 school year, the evidence proved that, at the very end of the 1987/1988 school year, the Respondent's new car was vandalized, apparently by students, during school on June 8, 1988, while

   parked off school grounds. Wood glue had been poured on the car, tomatoes had been smashed on the car, and the car tires had been slashed. When the Respondent saw the condition of her new car, she was very upset and angry.

   While some students and teachers were helping the Respondent try to clean her car, the Respondent was heard to say "G damn sons of bitches," not directed to anyone in particular. While the Respondent generally denies using the word "bitch," she admits that she was upset while the group was trying to clean her car on that occasion and admits that she does not recall what she might have said on that occasion. Even under those circumstances, the Respondent was reprimanded for using that language in the presence of students.

   
   

5. The Respondent also stands accused of calling one or more students a "bitch," or some variation of that vulgarity, during the 1989/1990 school. This charge was precipitated when, on or about April 27, 1990, a student named Nina Schwartz, whom the Respondent recently had notified that she was failing PE during the fifth grading period (the first grading period of the third of four 12-week school quarters), accused the Respondent of inappropriately touching her and staring at her in the PE locker room during the fifth grading period while the student was dressing after showering. Nina gave the school principal, Edward Baldwin, the names of other students who she said could verify her accusations or give similar statements about the Respondent.

   
   

6. One of the names Nina gave Baldwin was Christina Everett. Christina was a friend of Nina. When Nina told Christina about the accusation she had made, Christina started talking in general to the students that the Respondent was in trouble and was going to be fired. Christina also volunteered her own accusations--that the Respondent called her a "bitch" and that the Respondent roughly pulled her off the stage in the gymnasium during PE in order to discipline her.

   
   

7. Several other students were called to Baldwin's office to give statements. Several were under the influence of Nina and Christina and gave statements generally corroborative of their statements. However, the details of the statements were rife with inconsistencies, and the evidence presented was weak.

   
   

   It seemed that every alleged witness had a different version of the variation of the vulgarity containing the word "bitch" that the Respondent allegedly used.

   Some had the expletive being said to Christina, some to another student. Some had it being said in the gymnasium; some said it happened at shuffleboard courts across the street from the school.

   
   

   As for Christina's allegation that the Respondent pulled her off the stage in the gymnasium, there were serious inconsistencies between Christina's version and the version of her main supposed witness, her friend Tara Sims. In addition, the alleged incident was unlikely to have occurred because, by Christina's own testimony, she would have struck back at the Respondent if the Respondent had tried to pull her off the stage. 3/ There is no evidence that such an altercation took place.

   
   

   Apparently as part of the School Board's case that the Respondent inappropriate stared at students, the School Board elicited testimony supposedly to prove the unlikely story that the Respondent deliberately and lewdly looked up the dress of a mentally retarded student in her class. The supposed victim of this alleged misconduct did not testify, and those who did said that the incident

   supposedly occurred when the alleged victim asked the Respondent to help with a stuck skirt zipper. Some of the testimony was given in terms that it "seemed," or "looked like," the Respondent was looking up the girl's dress.

   
   

   Some of the School Board's witnesses on other incidents also gave rather neutral statements supportive of neither side. For example, several girls gave weak statements to the effect that they "felt" uncomfortable when the Respondent checked on them in the locker room when they were dressing or undressing (part of the Respondent's job as PE teacher) and the Respondent "seemed" to be staring at them although they were not sure she was staring at them and "could have been" just looking in their general direction.

   
   

   After Baldwin referred the matter to School District personnel officials for handling, some of the witnesses gave additional statements, some by deposition. These statements added to the inconsistencies of the first set of statements.

   By the time of the hearing, Nina's story changed from accusing the Respondent of having touched her during the fifth grading period to having touched her during the first or second grading period. (Nina had health in place of PE during the third and fourth grading periods.) This change accommodated the fact with which Nina by then had been confronted that the students did not take showers during the fifth grading period (because the weather was cold, and there was no hot water.) But it did not accommodate the fact that the two primary supposed witnesses to the deed, Christina and another girl named Donna Newland, did not take PE during the first or second grading period.

   
   

   Seemingly unconcerned by the inconsistencies and weaknesses in its case, the School Board presented all of the witnesses' testimony, which repeated and even added to the inconsistencies in the original statements and subsequent statements. Suffice it to say, the evidence was insufficient to prove the allegations that the Respondent "made vulgar and demeaning remarks to students," "roughly handled a student in a disciplinary manner," "stared at female students making them feel uncomfortable as they dressed or undressed," or "touched students inappropriately."

   
   

8. The Respondent also stands accused of "coerc[ing] students to write statements purporting to retract their allegations" and "misrepresent[ing] the truth to [her] administrator concerning the incidents." The former allegation was based on statements from some of the students to Baldwin. But the only evidence, other than those hearsay statements, was the Respondent's testimony denying the charge, the testimony of one of the students, Shannon Butler, also contradicting the charge, and the testimony of another student, Tina Farrell, that Tina "heard," from unspecified sources, that the Respondent had asked others to write notes, of unspecified content, and so Tina wrote one herself, unsolicited by the Respondent, and slipped it under the Respondent's office door so that the Respondent would not ask her for one. 4/ As to the latter allegation, since the School Board did not prove the truth of any of the current charges, it did not prove that the Respondent's denial of those charges constituted misrepresentations.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 231.36(4)(c), Florida Statutes (1989), provides that a teacher on continuing contract can be suspended or dismissed at any time during the school year on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. In this case, the School Board charged the Respondent with misconduct in office and gross insubordination.

10. The School Board is required to prove the charges against the Respondent by a preponderance of the evidence. Dileo v. School Board of Dade County, 15 F.L.W. D2781 (Fla. 3d DCA 1990); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

    
    

11. "Misconduct in office," as used in Section 231.36(4)(c), Florida Statutes (1989), is defined in F.A.C. Rule 6B-4.009(3) as:

    
    

    a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

    1. F.A.C. Rule 6B-1.006 provides in pertinent 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.

       
       

       1. 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.

       
       

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       2. Shall not intentionally violate or deny a student's legal rights.

       
       

    2. F.A.C. Rule 6B-1.001 provides in pertinent part:

       
       

       1. The educator values the worth and dignity of every person . . ..

       2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

       3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

12. "Gross insubordination" or "willful neglect of duties," as used in Section 231.36(4)(c), Florida Statutes (1989), is defined in F.A.C. Rule 6B- 4.009(4) as

    
    

    a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

13. As reflected in the Findings of Fact, the School Board did not prove that the Respondent was guilty of either "misconduct in office," as defined by

F.A.C. Rule 6B-4.009(3), or "gross insubordination," as defined by F.A.C. Rule 6B-4.009(4).5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent, Kay Kennedy.

RECOMMENDED this 18th day of March, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 18th day of March, 1991.

ENDNOTES

1/ Petitioner's Exhibit 3 itself also was not introduced in evidence, but an exact copy was introduced and admitted in evidence as Exhibit 6 to the Baker deposition transcript, which was received in evidence as Petitioner's Exhibit 16.

2/ The evidence on these charges presented at the hearing in this case (other than the Respondent's denial of the charges) was hearsay that was incapable of supporting a finding of fact. See Section 120.58(1)(a), Fla. Stat. (1989).

3/ From her demeanor at the hearing and from her general reputation as a ruffian, there is no reason to doubt this part of Christina's testimony.

4/ Like some of the other girls who testified about the "staring" incident, Tina had a fear of the Respondent for which there is no rational basis in the record.

5/ As reflected in the Findings of Fact, the evidence contained evidence of prior offenses for which the Respondent already has been reprimanded. This evidence was relevant to the Respondent's notice as to what constitutes misconduct. See F.A.C. Rule 6B-4.008. It also could have relevant to the determination of an appropriate penalty if the charges were sustained. But since the Respondent already has been punished for them in the form of reprimands, they cannot form the sole basis for new and additional discipline.

COPIES FURNISHED:

Robert G. Walker, Esquire Holloway & Walker

250 North Belcher Road Suite 101

Clearwater, Florida 34625

Lawrence D. Black, Esquire

152 Eighth Avenue, S.W. Largo, Florida 34640

Howard Heinsley Superintendent of Schools

School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 4618-4688

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE PINELLAS COUNTY SCHOOL BOARD WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE PINELLAS COUNTY SCHOOL BOARD CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-004713

Orders for Case No: 90-004713