STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1629

)

DEBORAH GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 4, 1995, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

For Respondent: Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should discipline the Respondent, Deborah Green, on charges set out in the Administrative Complaint filed in PPS Case No. 923288-R.

PRELIMINARY STATEMENT

On March 28, 1994, the Department of Education (DOE) referred the Administrative Complaint in this case to the Division of Administrative Hearings (DOAH) for formal administrative proceedings under Section 120.57(1), Fla. Stat. (Supp. 1994). In accordance with the DOE's Response to Initial Order, the case initially was scheduled for final hearing on September 9, 1994.

On July 28, 1994, DOE moved to continue the final hearing. The Motion to Continue was heard by telephone on August 5, and on August 16, 1994, an Order Continuing Final Hearing was entered, rescheduling final hearing for December 6, 1994.

On October 17, 1994, DOE again moved to continue the final hearing. The Respondent opposed the requested continuance to February or April, 1995, but agreed to a continuance to December 8, and final hearing was continued to December 8, 1994.

On November 10, 1994, the Respondent filed a Motion to Consolidate this case with the recently filed DOAH Case No. 94-6074, the Respondent's request for a formal administrative hearing on the refusal of the School Board of Pinellas County to accept the Respondent's recision of her resignation from her position as a high school teacher. The School Board opposed consolidation.

On November 16, 1994, the Respondent also filed a Motion to Continue this case so that it could be consolidated and heard with DOAH Case No. 94-6074.

The pending motions were heard by telephone on November 28, and on November 29, 1994, an Order Denying Consolidation and Continuing Final Hearing was entered rescheduling this case for final hearing on April 4, 1995 (the day before the final hearing in DOAH Case No. 94-6074).

At the final hearing in this case, after a special appearance as co-counsel of record for DOE was made for purposes of the final hearing, DOE called nine witnesses and had Petitioner's Exhibits 1 through 5, 6-A and 7 admitted in evidence.

The Respondent objected to Petitioner's Exhibit 6-B and to the testimony of two of the witnesses on the grounds that neither the exhibit nor the witnesses were identified in responses to discovery calling for their identification. The objection to the testimony of one of the witnesses was sustained. Ruling was reserved on the objections to the exhibit and to the testimony of the other witness, Lynne Morneault, in order to give DOE's other counsel an opportunity to argue in DOE's proposed recommended order why the objections should not be sustained. No arguments have been presented, and the objections are sustained.

At the conclusion of the presentation of the evidence, special counsel for DOE ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on April 21, 1995.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-1629.

FINDINGS OF FACT

1. The Respondent, Deborah Green, hold Florida teaching certificate 586445, covering the areas of Math, Elementary Education and Educational Leadership. The certificate is valid through June 30, 1997.

   
   

2. During the 1992/1993 school year, the Respondent was a teacher in the Pinellas County Schools GOALS program at Dixie Hollins High School.

   
   

3. GOALS stands for Graduation Options - Alternative to Leaving School.

   It is a drop-out prevention program. Although the evidence did not describe the GOALS program in detail, the evidence suggests that GOALS teachers may be in the position of having to change some of the rules of regular education in order to keep students from dropping out and yet may still be subject to criticism for not conforming to the rules of regular education. Put another way, there

   appears to be the potential for some of the priorities of the GOALS program to be inconsistent with some of the priorities of regular education, and it was not clear from the evidence how GOALS teachers are supposed to balance the competing interests.

   
   

4. One of the Respondent's GOALS students in history class during the 1991/1992 school year was Andrew Patrick. By definition, as a GOALS student, he was at risk to drop out when he entered the program. He also was a poor student, especially in math. Emotionally, Patrick seemed to suffer from an abnormally strong need to feel popular while at the same time failing to realize that the results of his efforts to be popular generally were the opposite of what he intended. After letting down his guard and allowing himself to be friendly and civil with the Respondent, he soon came to like her personally. At the same time, he seemed to sense (probably correctly) that a personal relationship with the Respondent, who was a very popular teacher, could make him popular by association.

   
   

5. Over time, a close teacher-student relationship developed between the Respondent and Patrick. The Respondent was able to use this relationship to further her goal of keeping Patrick interested in school. In addition, the Respondent discovered that Patrick became more interested in school the more he was allowed to help the Respondent in the classroom. As a means of legitimate "positive stroking," the Respondent gave Patrick more and more responsibilities in her classroom and praised him for carrying them out successfully.

   
   

6. Over time, Patrick developed an adolescent crush on the Respondent. He became unusually interested in her and in the details of her personal life. He learned, accidentally at first, that the Respondent was dating a man named Michael Miller, who was married and who was the principal of another Pinellas County high school. He questioned her repeatedly about her relationship with Miller and also pestered the Respondent's adopted daughter, who also was in the GOALS program, for information about the Respondent and her personal life. (Actually, the girl was the daughter of a close friend of the Respondent. The Respondent and her friend helped each other raise their children. Both families lived in the Respondent's home, and the Respondent referred to the girl as her daughter.) In addition, for a student, he bought her relatively expensive gifts; he also bought her gifts more frequently than the other students.

   
   

7. The Respondent did little to discourage Patrick's obvious crush on her. Instead, she exploited it, in part in furtherance of her objectives as his GOALS teacher but also, during the 1992/1993 school year, in part for her benefit.

   
   

8. During the 1992/1993 school year, Patrick's role in the Respondent's pre-algebra classroom expanded to what seemed to be practically the Respondent's personal assistant.

   
   

9. The Respondent gave Patrick a desk at the front of the classroom near her teacher desk, facing the students, such as a teaching assistant might have.

   
   

10. The Respondent had Patrick prepare weekly GOALS progress reports for her to fill out for each student. (He wrote her name in the appropriate blank, but it was not proven that the blank necessarily called for her signature or initials, as opposed to just her identity as teacher.)

    
    

11. The Respondent also had Patrick maintain the hall passes for her use. When a student needed a hall pass, she referred the student to Patrick to get one. Patrick would fill out the hall pass and give it to the student. Usually,

    the hall pass required the Respondent's signature but, on occasion, Patrick forged the Respondent's signature. When the Respondent was made aware that Patrick had forged her signature, she admonished him not to, but she did not monitor very closely or control him very well.

    
    

12. The Respondent also had Patrick complete daily attendance slips to be picked up by a runner from the administrative offices.

    
    

13. The Respondent also had Patrick use an answer key to grade daily class assignments and some quizzes for his class and other classes she taught and had him enter the grades in a grade book. (There also was one other student who used an answer key to grade some daily class assignments and some quizzes and enter the grades in a grade book for the Respondent, but the other student was not nearly as heavily involved in these activities as Patrick.)

    
    

14. It is not clear from the evidence whether Patrick and the other student entered the daily class assignment and quiz grades in the Respondent's official class grade book or in one of the other grade books that the Respondent maintained for other purposes.

    
    

15. Patrick usually performed tasks for the Respondent during math class, but sometimes (as the Respondent was aware) he left other academic classes during the school day to the Respondent's classroom to perform tasks for her.

    
    

16. Patrick rarely took quizzes himself. The Respondent had determined that Patrick did not test well, and she devised alternative means of measuring his progress in her classroom. Often, Patrick didn't even know when the Respondent was evaluating and grading what he was doing for her in the classroom.

    
    

17. Patrick relished his role as the Respondent's assistant, applied himself to it and did a very good job in the role. He obviously tried very hard to please the Respondent, and she gave Patrick credit for his effort and performance. But it seems questionable how the Respondent fairly and accurately could have evaluated and graded Patrick's progress, especially in a class like pre-algebra, based on his performance in the tasks she was assigning him to do for her in the classroom. On the other hand, what she was doing kept Patrick in school, and there was no evidence that the general approach was incorrect in the context of a GOALS program pre-algebra class.

    
    

18. During the 1992/1993 school year, the Respondent was under stress at least in part due to her relationship with Miller. It probably comforted her to an extent to allow Patrick to draw her into discussions about subjects such as her relationship with Miller. She stopped short of discussing the intimate details of the relationship, but in some respects Patrick could use his imagination to fill in the blanks. Later in the fall, the Respondent had to deal with the additional stress of having to decide whether to accept an offer of marriage from a well-to-do friend from Texas. She freely discussed her dilemma with Patrick.

    
    

19. By January, 1993, the Respondent was having serious difficulty handling the stress and began to suffer physical symptoms. She accepted the advice of her chiropractor, who was treating the physical symptoms of her stress, to take a medical leave of absence. Her application for leave was approved through June 11, 1993, and she began her leave on January 27, 1993.

20. When Patrick inquired about the Respondent's absence from school, and was told that she was gone and probably would not be back, he became hysterical. He went to the principal's office and angrily accused the principal of getting rid of the Respondent because of her relationship with Miller (which the principal knew nothing about) because he was confidant that his (Patrick's) relationship with the Respondent was much too close for her to have left voluntarily without consulting with him. He described the nature of their relationship. When the principal denied that he had anything to do with it, Patrick began to blame himself, saying that he had encouraged the Respondent to drop her relationship with Miller and marry the friend from Texas. The principal calmed Patrick down and had him sent home.

    
    

21. That evening, Patrick's mother telephoned the principal to complain about the Respondent. She had talked to her son and obtained new information from him about his relationship with the Respondent and his role in her classroom. After receiving the mother's telephone call, the principal telephoned the Respondent to inform her that a student had made serious allegations about her and that the student's mother had called him very upset. He would not tell her what the allegations were but told her the name of the student. The Respondent declined to talk about it further over the telephone but readily agreed to meet with the principal, Patrick and his mother the next day at 1:00 p.m. The Respondent also agreed to write Patrick and his mother to explain that she was on medical leave of absence. It was not proven that the principal told the Respondent not to talk to Patrick before their meeting the next day.

    
    

22. On the morning of the next day, the Respondent telephoned the school office to have Patrick paged to speak to her. The office assistant told her that she only could do so if it was an emergency. The Respondent told her that it was.

    
    

23. The Respondent spoke with Patrick for about ten minutes. She asked Patrick what he had said to the principal. When he told her, she admonished him that his statements had put her at risk of losing her job and that he had better "get his story straight." He correctly interpreted her to mean that she wanted him to recant his statements in order to protect her and her job.

    
    

24. At the meeting at 1:00 p.m., Patrick recanted his earlier statements and claimed that his mother had blown everything out of proportion.

    
    

25. It was improper for the Respondent to use Patrick (and, to a lesser extent, the other student), as she did during the fall of the 1992/1993 school year, as a personal assistant to grade class papers for her and enter grades in grade books for her. Her practice gave Patrick improper access to too many students' grades on papers and quizzes. It also tended to create an unhealthy appearance of favoritism. Although it was not proven that a certain amount of special treatment for good behavior and effort would be inappropriate especially in the context of a GOALS class, the Respondent went overboard when it came to Patrick.)

    
    

26. It was improper for the Respondent to engage in the close personal relationship that developed between her and Patrick during the fall of the 1992/1993 school year. It became harmful to the learning environment, it changed the relationship from a teacher-student relationship to a friend-friend relationship, and it tended to create an unhealthy appearance of favoritism.

27. Encouraging Patrick to lie for the Respondent in order to protect her job (and Miller's reputation) exposed him to conditions harmful to his learning and mental and emotional health and safety.

    
    

28. The Respondent exploited her relationship with Patrick for personal gain or advantage during the fall of the 1992/1993 school year in that she used him improperly as her personal assistant.

    
    

29. Except for the incidents that were the subject matter of this case, the Petitioner has a fine record as a teacher. In fact, at the time she took her medical leave of absence, she was about to be interviewed as part of the School Board's Targeted Selection Process for recruiting and training qualified teachers for promotion to a managerial position. The Respondent's inappropriate conduct during the fall of the 1992/1993 school year resulted from the exercise of poor judgment in the degree to which she varied from the conduct expected of a teacher in regular education while teaching in the GOALS program. The Respondent's poor judgment may have resulted in part from the debilitating personal stress from which she was suffering and which, actually on the eve of her Targeted Selection interview, required her to take a medical leave of absence.

    
    

    CONCLUSIONS OF LAW

    
    

30. DOE's allegations must be proven by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

31. Section 231.28(1), Fla. Stat. (Supp. 1994), authorizes the Education Practices Commission (EPC) to suspend a teacher certificate for up to three years, revoke a teacher certificate for up to ten years, with reinstatement subject to subsection (4) of the statute, or revoke a teacher certificate permanently, or impose any other penalty provided by law, if a teacher:

    
    

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

    * * *

    (i) 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.

    
    

    Although this statute authorizes the EPC to "impose any other penalty provided by law," no "other penalties" are "provided by law." Suspension or revocation are the only available punishments.

    
    

32. As to Section 231.28(1)(f), it was not proven that the Respondent's personal conduct seriously reduces her effectiveness as an employee of the School Board of Pinellas County.

    
    

33. As to Section 231.28(1)(i), F.A.C. Rule 6B-1.006(2) provides that violation of the principles of Professional Conduct for the Education Profession of Florida will subject an individual's teacher's certificate to revocation, suspension, or other penalties as provided by law. F.A.C. Rule 6B-1.006(3)(a) provides that an educator "[s]hall 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." F.A.C. Rule 6B-1.006(3)(e) provides that an educator "[s]hall not exploit a relationship with a student for personal gain or advantage."

    
    

34. It is concluded that, during the fall of the 1992/1993 school year, the Respondent used poor judgment and failed to "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" and that she "exploit[ed] a relationship with a student for personal gain or advantage."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order suspending the Respondent for 45 days based on the charges that have been proven in this case.

RECOMMENDED this 17th day of May, 1995, 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 17th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1629

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated.

1. First sentence, rejected as not proven. Second sentence, accepted and

   incorporated.

2. Accepted and incorporated.

3. Accepted and incorporated to the extent not subordinate or unnecessary.

4. Rejected as not proven that either graded test papers or that test grades were entered or that grades were entered in the Respondent's official grade book. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

5. First sentence, rejected as not proven. (She gave them A's in part for the work they did for her, rather than solely for scores earned on tests and quizzes administered to the other students.) Second sentence, accepted and incorporated.

6. Accepted but subordinate and unnecessary.

7. Rejected as not proven that a "sexual relationship" with the Texan was discussed. Otherwise, accepted and incorporated.

8. Rejected as not proven.

9. Accepted and incorporated.

10. First sentence, rejected as not proven. Otherwise, accepted and incorporated.

11. First sentence rejected as not proven that she did not agree to meet until after talking to the student. Otherwise, accepted and incorporated.

12. Rejected in part as conclusion of law. Also, rejected as not proven that it is improper for a teacher to have a student grade another student's daily class assignments and homework assignments for immediate feedback. (This usually is done by exchanging papers in class.) Otherwise, accepted and incorporated. (The extensive use of Patrick as if he were the Respondent's personal assistant was improper.)

13. Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick.

14. Accepted but subordinate and unnecessary. (It was not proven that the Respondent allowed Patrick to forge her signature to hall passes.)

15. Rejected as not proven in the context of the GOALS program.

16. Accepted and incorporated.

17. Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick.

Respondent's Proposed Findings of Fact.

(For purposes of these rulings, consecutive numbers have been assigned to the unnumbered paragraphs of proposed findings of fact in the Respondent's proposed recommended order.)

1. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law.

2.-3. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as contrary to facts found and to the greater weight of the evidence that the Respondent just told Patrick to "tell the truth." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Generally accepted but subordinate, some to facts contrary to those found. The documents in evidence reflect that the Respondent did give quizzes in her GOALS classes. And, while evaluators who observed her classrooms saw students grading class assignments, the evidence was not clear that they were aware of the extent of Patrick's role as the Respondent's personal assistant.

3. Last sentence, rejected as contrary to the evidence. But the rest is accepted and incorporated to the extent not subordinate or unnecessary.

7.-8. Accepted but subordinate and unnecessary.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. First sentence, rejected as to Patrick as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

3. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

4. Second sentence, accepted and incorporated. The rest is rejected as contrary to facts found and to the greater weight of the evidence.

5. Fourth sentence, rejected as contrary to facts found and to the greater weight of the evidence. The rest is rejected as contrary to facts found and to the greater weight of the evidence.

6. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

J. David Holder, Esquire Suite 100

1408 North Piedmont Way Tallahassee, Florida 32312

Bruce P. Taylor, Esquire

501 First Avenue North Suite 600

St. Petersburg, Florida 33701

Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A.

1718 E. 7th Avenue, Suite 301

P. O. Box 75638

Tampa, Florida 33675-0638

Karen Barr Wilde Executive Director

301 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Education Practices Commission 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 Education Practices Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-001629

Orders for Case No: 94-001629