STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4489

)

JUNE C. RAWLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on October 27, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: John F. Gilroy, Esquire

Margaret E. O'Sullivan Department of General Counsel

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated June 9, 1992, petitioner charged that respondent, a certified teacher in the State of Florida, violated the provisions of Section 231.28(1)(c) and (h), Florida Statutes, and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. The gravamen of petitioner's charges is her contention that during the school year 1990-91, while employed as a kindergarten teacher at Gloria Floyd Elementary School in the Dade County School District, respondent used inappropriate physical force to discipline or control the behavior of students, made inappropriate or disparaging remarks to her students, failed to report or document injuries to her students, and left her students unattended. In response, respondent executed an election of rights which disputed such allegations of fact, and the matter was referred to the Division

of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses: Mary T. Niski, Sarah Ann Hoyle, Donna Shivers, Sue M. Ruth, Andrea Rosenblatt, and Linda Streker.

Petitioner's exhibit 1 was received into evidence. Respondent testified on her own behalf and called Cathy Birkenstock and Chad Rawls as witnesses.

Respondent's exhibit 1 was received into evidence.

Following the conclusion of the hearing, the record remained open, with the parties' agreement, to accord petitioner an opportunity to depose Precilla Gryder and Mary McCaffrey, and to file such depositions as late-filed exhibits. Such depositions were filed January 15, 1993, marked as petitioner's exhibit 2 (the deposition of Precilla Gryder) and exhibit 3 (the deposition of Mary McCaffrey), and received into evidence.

The transcript of hearing was filed November 13, 1993, but in view of the record being held open, as discussed supra, the parties were granted leave to file proposed findings of fact within ten days of the date such depositions were filed. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, June C. Rawls, currently holds Florida teaching certificate number 240351, covering the areas of early childhood education and elementary education, which is valid through June 30, 1996. Respondent has been employed by the Dade County Public School System for 25 consecutive years and was so employed at all times pertinent to these proceedings.

   
   

2. During the 1990-91 school year, respondent was employed as a kindergarten teacher at Gloria Floyd Elementary School. Her class, comprised of

   5 and 6-year-olds, was typical in terms of class size, with 22 to 24 students, and in terms of the nature of her students, with the vast majority considered within the "norm" and two or three that might ultimately be identified as "outstanding" or "exceptional" students.

   
   

3. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate physical force to discipline or control the behavior of her students, and made inappropriate or disparaging remarks to her students. The proof overwhelmingly supports such charges and demonstrates that not only did respondent subject her youthful charges to such loathsome conduct, but that she did so on a routine basis. 1/

   
   

4. Regarding the verbal abuse respondent visited upon her students, the proof demonstrates that she routinely spoke in a loud, harsh and intimidating voice, and ridiculed, mocked and denigrated her students. Exemplifying the tenor of remarks she vented upon various of her student or the class are the following:

   
   

   1. "You're no good, I know you're no good, you're mother knows you're no good and you're father knows you're know [sic] good so sit down and shut up."

      
      

   2. In a 7 minute tirade, abraded a student with the following remarks: the "reason you're parents don't like you; you are so bad; when you come home tonight you're parents are going to be gone, they're going to go off and leave you; you are so bad; nobody likes you, you're parents don't love you."

   3. Abrading the entire class, she commented with regard to their comparative worth with the class next door, which was a prekindergarten, high risk, special education class, the following: "If you don't shut up you're going to be like those kids next door, you know what their like. If you don't, you're going to be just like those children next door; you are just like those children next door; you're stupid; you're dumb."

      
      

   4. Upon being advised by another teacher that she had found a dollar lying on respondent's classroom floor, and one of the respondent's students averring that it was his, respondent remarked in a loud strident voice so the entire class could hear that he "was a sick puppy, . . . he would never amount to anything and it was no wonder his parents didn't like him and [that the other teacher] shouldn't touch the money since it had been in his underwear."

      
      

   5. And, variously, "you're not worth anything," and "you're dumb, you're never going to be anything."

      
      

5. In addition to the loud, harsh and intimidating voice respondent used to address her students, she was also physically abusive towards them. In this regard, the proof demonstrates the following:

   
   

   1. Respondent would occasionally drag students across the floor by their wrists to the "time out corner," and slap them; pick students off the ground by their wrists and shake them; and roughly push or slam them into their seats or on the floor.

      
      

   2. On one occasion, respondent picked a student up by the jaws, about two feet off the floor, and carried the child about seven or eight feet across the room.

      
      

   3. Respondent was observed pushing students, pulling their hair, squeezing their ears and pinching them.

      
      

   4. On one occasion, respondent was observed angrily throwing a back pack and lunch box across the classroom, and on another occasion, she was observed to have kicked a child who had kicked another child.

      
      

   5. Finally, respondent was observed to have forced her students to sit in a cross legged position, and when one child apparently was having problems because the child's legs were getting cramped and opened them up, respondent took the child's legs and slammed them close to cross them again.

      
      

6. The foregoing incidents of verbal and physical abuse reflect the tenor of respondent's conduct toward her students during the course of the 1990-91 school year, which was routinely punctuated by verbal haranguing. Such conduct failed to present a good example, as a role model, for the students or set a good example for the children to emulate in dealing with their peers; caused various students to become hysterical,cower, cry and fear respondent; damaged their self esteem; and raised concern that her rough handling of students could result in serious injury to them, such as damage to their spinal cord.

   
   

7. Respondent's conduct during the 1990-91 school year was condemned by her peers and parents. Such conduct evidenced a reckless indifference to the mental and physical well-being of her students, was contrary to Dade County Public School policy which forbids the use of corporal punishment, and such

   punishment was administered contrary to the provisions of state law. Section 232.27, Florida Statutes.

   
   

8. While respondent's conduct during the 1990-91 school year forms the basis for the charges lodged against her by petitioner, the proof demonstrates, as elicited by respondent, that her abusive behavior was not limited to that school year. Rather, the proof demonstrates that the demeanor she exhibited towards her students deteriorated over the two-year period preceding the 1990-91 school year, and her verbal haranguing continued into the 1991-92 school year even though she had been reassigned to teach a higher grade level.

   
   

9. In December 1991, respondent's physician advised her, after consulting him for some "physical problems," that "different chemicals within [her] body were elevated and he thought [she] should seek counseling or take some time off from work." Consequently, respondent took two weeks leave, in addition to her normal Christmas holidays, and during such time saw a psychologist for counseling. The record is, however, devoid of any proof concerning respondent's diagnosis, the purpose for the counseling, the frequency of the counseling, or the prognosis for her recovery from the condition, albeit unexplained of record, which prompted her referral to counseling. What does appear of record is, however, the fact that what ever counseling she received was limited to December 1991, and that she has sought no counseling since that time.

   
   

10. In January 1991, following the Christmas holidays, respondent returned to Gloria Floyd Elementary School, where she remained until she was transferred to another school in May 1992. Apparently no change occurred in respondent's behavior because, notwithstanding counseling, respondent's principal was of the opinion, which is credited, that respondent "should leave the classroom . . . I don't think she should be teaching elementary school."

    
    

11. While severe, the conclusion that respondent should not be permitted to return to the classroom, at the current time, is well supported by the clear and present danger respondent posed to her students' mental and physical well- being during the 1990-91 school year, and the lack of any compelling proof that such conduct would not reasonably be expected to repeat itself. In so concluding, respondent's testimony that she has not suffered similar problems during the 1992-93 school year has not been overlooked; however, such testimony is not persuasive or credible given respondent's contemporaneous denial, in the face of overwhelming proof to the contrary, that she ever committed any of the acts of verbal or physical abuse heretofore discussed, and would never have done so because it would have been "demeaning and disparaging" to the students. In sum, respondent is either a prevaricator or her grasp of reality is so distorted as to lack reliability, such that her testimony is unworthy of belief.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceeding. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

13. Where, as here, petitioner seeks to revoke a professional license, it bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds at page 958, the following:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

14. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Section 231.28(1)(c) and (h), Florida Statutes, and Rule 6B-1.006(3)(a) an (e), Florida Administrative Code. Section 231.28, Florida Statutes, provides:

    
    

    (1) The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

    * * *

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    h) 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.

    And, Rule 6B-1.006, Florida Administrative Code, provides:

    
    

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

    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.

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

15. Rule 6B-4.009(2), Florida Administrative Code, defines immorality as follows:

    
    

    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.

    
    

    Moreover, the term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practice Commission v. Knox, 3 FALR 1373-A (DOE 1981). Accord, State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), wherein the court concluded:

    
    

    Moral turpitude [or synonymously, "gross immorality" as that term is also used in the subject statute] involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

16. The moral standard to be upheld must be viewed in context with the profession at issue. See Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Teachers, "charged by Sections 23.109 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in the community." Adams, supra, at

    page 1172. Accord, Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975), wherein the court observed at page 160:

    
    

    A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

    
    

17. Applying the foregoing standards to the facts of this case demonstrates, clearly and convincingly, that respondent's conduct violated the provisions of Sections 23.128(1)(c) and (h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code.

    
    

18. In crafting an appropriate penalty to impose upon respondent, due consideration has been given to her years of dedication to her profession, and her apparent acceptable performance prior to the incidents which gave rise to the complaint filed in this case. The seriousness of respondent's conduct is not, however, extenuated by the term or nature of such prior service, and the proof compels the conclusion that her certificate should be revoked for a term of years and that should she seek to return to the practice of her profession that she be required to meet the certification requirements of the state board current at the time of application for the new certificate. See e.g., Section 231.17, Florida Statutes, which requires, inter alia, that an applicant for certification "be competent and capable of performing the duties, functions, and responsibilities of a teacher; and . . . be of good moral character." In the interim, respondent should avail herself of such education, training and counseling as may be necessary to meet the requirements for certification should she desire to return to the classroom in the future.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which permanently revokes

respondent's teaching certificate for a term of five (5) years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1993.

WILLIAM J. KENDRICK

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 26th day of February 1993.

ENDNOTE

1/ The administrative complaint also charged that respondent failed to report or document injuries to her students and left her students unattended. There was, however, no proof that any student received an injury that warranted reporting. Moreover, while there was proof that respondent occasionally left her students unattended for four or five minutes, there was no proof that as a consequence of leaving her students unattended for brief intervals their safety was jeopardized.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

Respondent's proposed findings of fact are addressed as follows:

COPIES FURNISHED:

John F. Gilroy, Esquire Margaret E. O'Sullivan Department of General Counsel

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue

Suite One

Miami, Florida 33129

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West 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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education, Petitioner,

vs. EPC CASE NO.92-107RT

DOAH CSE NO.92-4489

JUNE C. RAWLS, EPC INDEX NO93-053-FOF

Respondent.

/

FINAL ORDER

Respondent, JUNE C. RAWLS, holds Florida educator's certificate no. 240351. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order was forwarded to the Commission pursuant to Section 120.57(1), F.S., which is attached to and made a part of this Order.

A panel of the Education Practices Commission (EPC) met on May 6, 1993, in Tampa Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Attorney at Law. Respondent was represented by William DuFresne, Attorney at Law. The panel reviewed the entire record in the case.

Materials submitted by Respondent to consider in mitigation of the violations were not considered in that they were not timely and properly submitted as part of the record of the formal hearing.

The panel adopts the Hearing Officer's Findings of Fact and Conclusions of Law of the Recommended Order. Upon due consideration of the record, the panel determined that the penalty recommended by the Hearing Officer should be reduced in that the recommended penalty is more severe for the cited violations than customarily issued by the EPC and because more consideration should have been given to this teacher's twenty-five years of good service (see page 3, paragraph

1 and page 11, paragraph 18 of the Recommended Order).

Wherefore, it is ORDERED that the Respondent's educator's certificate be suspended from July 1, 1993 until December 31, 1993 with Respondent to serve a three year period of probation during her employment as a Florida educator directly following said period of suspension. The terms of probation shall be that Respondent: arrange for her immediate Supervisor to submit performance reports to the EPC at least every three months; complete six hours of college level course work in student discipline; prior to reentry in the classroom, provide written verification from a licensed psychologist, psychiatrist or mental health counselor that the Respondent has been evaluated and is capable of resuming or continuing as an educator without posing a threat to children; all costs incurred in fulfilling terms of probation shall be borne by the Respondent.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 12th day of, 1993.

LORETTA VACANTI, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. June C. Rawls was mailed to William DuFresne, Esquire, 2929 Southwest Third Avenue, Suite One, Miami, Florida 33129, this 17th day of May 1993, by U.S. Mail.

KAREN B. WILDE, Clerk

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services Daniel Bosanko, Esquire Attorney General's Office

Sydney McKenzie, General Counsel

Florida Admin. Law Reports

Octavio J. Visiedo, Supt. Dade County Schools

1450 N. E. 2nd Avenue Miami, Florida 33132

Dr. Patrick Gray

Executive Asst. Superintendent Office of Professional Standards Dade County Schools

1444 Biscayne Blvd., Suite 215

William J. Kendrick, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Margaret O'Sullivan, Esquire Department of Education 1701, The Capitol

Tallahassee, Florida 32399

Docket for Case No: 92-004489

Orders for Case No: 92-004489