STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7278

)

LINDA SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on May 19, 1993 in Sarasota, Florida.

APPEARANCES

For Petitioner: Harold O. Miller, Esquire

Nelson, Hess, Cyril, Smith, Widman, Herb, Causey & Dooley

2070 Ringling Boulevard

Sarasota, Florida 34237

For Respondent: Frederick P. Mercurio, Esquire

Mercurio and Ostrander, P. A. 1800 Second Street, Suite 920

Sarasota, Florida 34236 STATEMENT OF THE ISSUE

Whether Respondent, Linda Simmons' employment with the Petitioner, Sarasota County School Board, should be terminated based upon the charges alleged in the letter of termination dated November 20, 1992.

PRELIMINARY STATEMENT

By letter dated November 20, 1992, Charles W. Fowler, Superintendent, Sarasota County Schools, advised the Respondent of certain charges being brought against her which, if proven, would constitute a violation of the Code of Ethics, Principles of Professional Conduct. The letter further advised the Respondent that based upon these charges, Superintendent Fowler intended to recommend to the Sarasota County School Board (Board) that Respondent's employment be terminated. On November 30, 1992, the Respondent's attorney advised Superintendent Fowler that the Respondent was requesting a formal hearing on the charges before a Hearing Officer assigned by the Division of Administrative Hearings. By letter dated December 7, 1992, the Board referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a formal hearing. A formal hearing in this matter was held on May 19, 1993, in Sarasota, Florida.

At the hearing, the Board presented the testimony of Linda Gonzales, Ann B. Klemeyer, Margaret Swetnan, Michael McHugh, Peggy Gaylor, Susan Goodpaster and Linda K. Post. Petitioner's exhibits 1 and 4 were received as evidence in this case. Petitioner's exhibit 3, the deposition of the Board's expert, Terry M. Levy, Ph.D., was received as evidence in this case in lieu of Dr. Levy's testimony at the hearing. Objection to Petitioner's exhibit 2 as to relevancy was sustained and Petitioner's exhibit 2 was proffered. After reviewing the record, the objection to Petitioner's exhibit 2 is sustained.

Respondent testified on her own behalf and presented the testimony of Jeffery Aquilar. Respondent's exhibit 1 was received as evidence in this case.

A transcript of this proceeding was filed with the Division of Administrative Hearings on June 10, 1993. On June 18, 1993, the Board filed an unopposed motion for extending the time for submitting the Proposed Findings of Fact and Conclusions of Law until July 26, 1993. The motion was granted. On July 26, 1993, the parties filed a joint motion requesting further extension of time for filing Proposed Findings of Fact and Conclusions of Law until August 10, 1993, based on the possibility of settlement in light of other proceedings. The motion was granted. On August 2, 1993, a third motion was filed requesting an extension of time for filing Proposed Findings of Fact and Conclusions of Law until August 25, 1993, again citing the need for additional time to pursue settlement as grounds for the extension of time. As with the two previous motions, this motion was granted with the understanding that the extension of time waived the time constraint for the entry of a Recommended Order set forth in Rule 28-5.402, Florida Administrative Code, in accordance with Rule 60Q- 2.0031(2), Florida Administrative Code. The Board timely filed its Proposed Findings of Fact and Conclusions of Law under the extended time frame. The Respondent elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Board has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Respondent was certified as a school social worker and as a teacher for emotionally handicapped children and has been licensed by the state of Florida as a clinical social worker for eight years.

   
   

2. For approximately 2 years prior to the 1991-92 school year, the Respondent had been employed by the Board as a teacher for emotionally handicapped children and assigned to the Sunshine Kids Program (Program) at the YMCA in Sarasota County, Florida.

   
   

3. The Program was a pilot project, and a joint effort between the Board, the Child Development Center and the YMCA. The Board provided the teacher, the classroom aide and educational supplies.

   
   

4. Although the Board considered the Program a success, it was decided that in order for the Board to offer the program to all eligible children it would be best to locate the Program in a school facility. Therefore, the Program was moved to the Fruitville Elementary School beginning the 1991-92 school year.

5. The Program employed attachment bonding therapy in dealing with severely emotionally disturbed children. This type of therapy is confrontational in nature and at times requires the therapist to physically restrain the child to gain control. It was Respondent's understanding that the attachment based curriculum had the Board's approval and that there was administrative support for the attachment based curriculum.

   
   

6. During Respondent's tenure with the Program at the YMCA, the Respondent asked for and was granted permission by the Board to attend two annual conferences on attachment and bonding in Miami, Florida where attachment bonding therapy was discussed.

   
   

7. During the 1991-92 school year, Respondent was employed by the Board as a teacher of pre-kindergarten severely emotionally disturbed children at Fruitville Elementary School in Sarasota County, Florida.

   
   

8. There was a full-time therapist for Respondent's class while located at the YMCA facility. However, when Respondent's class moved to Fruitville Elementary School the therapist was only available on an "as needed" basis.

   
   

9. At the beginning of the 1991-92 school year, Respondent was assisted in the classroom by Linda Gonzales, a teacher's aide. Beginning in December, 1991, in addition to Linda Gonzales, the Respondent was assisted by Ann Klemeyer, a teacher's aide. Prior to assisting Respondent, both Gonzales and Klemeyer had worked as teacher's aides in classes dealing with emotionally handicapped children.

   
   

10. Respondent's class at Fruitville Elementary School consisted of approximately nine severely emotionally disturbed children ranging in age from three to five years of age.

    
    

11. One of the severely emotionally disturbed children in Respondent's class was four year old Heath VanderCar who was approximately 3 1/2 feet tall, weighing between 35 and 40 pounds, with long pale blond hair. Heath was speech disabled due to a cleft palate.

    
    

12. Sometime in April, 1992, during a school day while the children were in "circle time", the Respondent, using both hands, took Heath VanderCar by his hair and lifted Heath momentarily off of the floor. The Respondent then dragged Heath across the floor and dropped him to the floor where he remained in "time out". Apparently, Respondent's actions were initiated by Heath's verbal refusal of Respondent's request that Heath remain still while in "circle time".

    
    

13. After the incident, several clumps and numerous strands of hair resembling Heath's hair were found by Klemeyer in the time-out area where the Respondent had placed Health. There is competent substantial evidence to show that the hair found by Klemeyer in the time out area was Heath's hair and that its presence in the time out area was a result of Respondent lifting Heath by the hair. Other than his missing hair, Heath suffered no physical or mental injury and there were no marks or bruises on Heath's body as a result of this incident.

    
    

14. Gonzales picked up Heath's hair from the floor for the purpose of discussing the matter with a teacher and a teacher's aide in the classroom next door. After discussing the matter with the teacher and teacher's aide next door, Gonzales was advised by them not to report the incident. Their reasoning

    was that it would be a teacher's aide's word against a teacher with good standing in the community. Gonzales did not report the incident to the school authorities or to the abuse registry.

    
    

15. During circle time on a school day close to Mother's Day, 1992 (May 10, 1992), Respondent, while stressing good behavior, made comment to the children in her class that their mothers could kill them if they wanted to and that, if they, the children, did not behave and start listening, the Respondent was going to call their mothers and tell them to kill the children.

    
    

16. On another occasion in class during 1992, the Respondent interrupted Gonzales while discussing dinosaurs with the children and told the children that the reason the dinosaurs were extinct was that they were mean, greedy and fought all the time. The Respondent told her class that extinct meant dead, and if they, the children, did not stop misbehaving they too would be extinct, dead.

    
    

17. On May 22, 1992, during "circle time" for the class, Heath VanderCar had been placed in a time out area for being disruptive. When Heath continued to fidget and interrupt the class while in time out, the Respondent proceeded to pick Heath up by his head so that his feet were off of the floor, using one hand under his jaw and the other hand behind his head. The Respondent then yelled at Heath that she was the "boss" and dropped him to the floor crying. Heath suffered no apparent physical or mental injury and there were no marks or bruises on Heath's body as a result of this incident.

    
    

18. Later on that same day, May 22, 1992, while Heath VanderCar was in the circle with the other children, seated next to Respondent on her right, Heath began to fidget with the velcro snappers on his sneakers. At this point, Respondent reached through Heath' arms around his back and proceeded to pull him across Respondent's body throwing Heath to her left for a distance of about six feet. Heath landed face down with his head within a foot of a file cabinet. Heath suffered no apparent physical or mental injury and there were no marks of bruises on Heath's body as a result of this incident.

    
    

19. Subsequent to the second incident with Heath VanderCar on May 22, 1992, the Respondent in attempting to demonstrate to the children the need to respect authority, proceeded to tap each child and the two aides asking each, "Are your afraid of me". Ashley VanderCar, Heath's five year old sister, answered "no". The rest of the class answered "Yes". Ashley is also a severely emotionally disturbed child, approximately 4 1/2 to 5 feet tall, weighing between 40 and 50 pounds.

    
    

20. Respondent responded to Ashley's reply by bringing her to the middle of the circle of children and pinning her to the floor, face down, with Ashley's arms and legs restrained. The Respondent then proceeded to take Ashley by the head and nod Ashley's head in the affirmative as Respondent said, "Are you afraid of Me? Yes, Ashley, you are afraid of me." When Ashley finally acquiesced, she was released. Ashley suffered no apparent physical or mental injury and there were no marks or bruises on Ashley's body as a result of this incident.

    
    

21. The purpose of Aggression Control Techniques (ACT) is the protection of: (1) a child in danger of hurting themselves; (2) another person in danger of being hurt by a child or; (3) property in danger of significant damage by the child. ACT is not a behavior modification technique and should not be used as a means of discipline.

22. The Respondent was aware of the purpose of ACT, having been trained in ACT through the Sarasota County School system.

    
    

23. Notwithstanding having been trained in ACT, the Respondent directed that the ACT restraint hold be used by Gonzales and Klemeyer on children in her class at Fruitville Elementary School to punish them and to require the children to agree to be good.

    
    

24. The Respondent used the ACT restraint hold to punish overt acts of defiance in her class at Fruitville Elementary School.

    
    

25. The Aggression Control Techniques do not include the techniques used by Respondent in her attempt to control the behavior of Heath VanderCar.

    
    

26. Respondent was under the mistaken belief that the techniques applied in her class at Fruitville Elementary School involved attachment bonding techniques discussed at the annual conferences she had attended in Miami, Florida.

    
    

27. There was competent substantial evidence to show that the techniques used by Respondent with the children in her class at Fruitville Elementary School were not the type of techniques involved in attachment bonding. However, even assuming that the Respondent's techniques involved attachment bonding, such techniques are designed to be used only in a clinical setting, not in a setting such as the Respondent's classroom at Fruitville Elementary School. The bonding intended to be generated in attachment bonding therapy is between the child and the child's parent or caregiver, not the child's teacher.

    
    

28. Gonzales testified that the Respondent was building a good rapport with the children in her class and there was no evidence that this rapport changed after the incidents.

    
    

29. Gonzales also testified that there had been no complaints from the parents on Respondent's handling of the class. There was no evidence of the parents awareness of Respondent's conduct.

    
    

30. There is competent substantial evidence to establish facts to show that Respondent's conduct during the 1991-92 school year, particularly her conduct during April and May, 1992 regarding Health and Ashley VanderCar, violated Rule 6B-1.006(3)(a), Florida Administrative Code.

    
    

31. There was no evidence that the community, including teachers and students, reacted in such a fashion to Respondent's conduct that her effectiveness in the school system had been impaired. However, the danger posed to the physical and mental health and safety of the children by Respondent's egregious conduct speaks for itself and it is self evident that Respondent's conduct has impaired her effectiveness in the school system.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

33. Section 230.23(5)(f), Florida Statutes, grants the school boards of the state of Florida the authority to dismiss, suspend or return to annual contract, members of the instructional staff as provided for in Section 231.36, Florida Statutes.

34. Section 231.36(6)(a), Florida Statutes, provides that any member of the instructional staff, excluding instructional staff on continuing contracts, may be suspended or dismissed for just cause.

    
    

35. As provided in Section 231.36(1)(a), Florida Statutes, just cause includes misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

36. In general, Rule 6B-1.001, Florida Administrative Code, titled as the Code of Ethics of the Education Profession in Florida, is aspirational in nature, and in most cases is not susceptible of forming a basis for suspension or dismissal. It is concluded that the Board has failed to prove a violation of this rule by Respondent.

    
    

37. By comparison with the Code of Ethics of the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, titled as the Principles of Professional Conduct for the Education Profession in Florida, sets more definite and measurable standards of conduct. Rule 6B-1.006(1) and (3)(a), Florida Statutes, provides as follows:

    
    

    1. The following disciplinary rule shall constitute the principles of professional conduct for the Education Profession in Florida

       . . . .

       1. Obligation to the student requires that the individual:

          1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety.

       
       

38. Rule 6B-4.009 (3), Florida Administrative Code, titled as the Criteria for Suspension and Dismissal provides as follows:

    
    

    6B-4.009 Criteria for Suspension and Dismissal. 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:

    . . . .

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

    6B-1.001, Florida Administrative Code, and the principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. (Emphasis supplied)

    
    

39. The termination letter which enumerates the charges against Respondent, charges that Respondent, by her conduct, has violated the Code of Ethics, Principles of Professional Conduct which apparently refers to Rule 6B- 1.001, Florida Administrative Code, and Rule 6B-1.006, Florida Administrative

    Code, respectively. The Board has proven that Respondent's conduct violated Rule 6B-1.006(3)(a), Florida Administrative Code. However, a violation of the Code of Ethics or Principles of Professional Conduct is insufficient for the suspension or dismissal of an individual who is a member of the school board instructional staff, unless such violation is so serious as to impair the individual's effectiveness in the school system. The Board has proven that the Respondent's conduct was so serious as to impair Respondent's effectiveness in the school system.

    
    

40. The burden of proof in proceedings such as these require that the Board prove its allegation by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (3 DCA Fla. 1990); Dileo v. School Board of Dade County, 569 So.2d 883 (3 DCA Fla. 1990). The Board has sustained its burden in this regard.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Sarasota County School Board enter a final order terminating Petitioner's employment with the Board, effective as of the date of Respondent's suspension.

RECOMMENDED this day 9th of November, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 9th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7278

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case.

Petitioner's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(7); 3(10); 4-5(9); 7(11); 8(12,13); 9(14); 11(17); 13(18); 14-15(19); 16(20); 17(15); 18(16); 19(22); 20(24); 21(25); 22(26); 23(27); 24-25(28); and 26(33).

2. Proposed finding of fact 6 is neither material nor relevant to the charges.

3. Proposed finding of fact 10 is more of statement as to credibility of testimony than a finding of fact. But see findings of fact 12 and 13.

4. Proposed finding of fact 12 goes to the weight of given testimony and is not a finding of fact. But see finding of fact 17.

5. Proposed finding of fact 27 is rejected in that it is not supported by competent substantial evidence in the record. See findings of fact 31-34.

Respondent's Proposed Findings of Fact.

Respondent did not file and proposed findings of fact.

COPIES FURNISHED:

Harold O. Miller, Esquire Nelson, Hess, Cyril, Smith,

Widman, Herb, Causey & Dooley 2070 Ringling Boulevard

Sarasota, Florida 34237

Frederick P. Mercurio, Esquire Mercurio and Ostrander, P. A. 1800 Second Street, Suite 920

Sarasota, Florida 34236

Honorable Betty Castor Commission of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. Charles W. Fowler, Superintendent Sarasota County School Board

2418 Hatton Street

Sarasota, Florida 34237-8126

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the final order in this case concerning their 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.

Docket for Case No: 92-007278

Orders for Case No: 92-007278