STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 96-0441

)

PATRICIA SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came on for formal hearing before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on May 14, 1997, by video teleconference. The Administrative Law Judge and Petitioner’s counsel were located at the office of the Division of Administrative Hearings in Tallahassee, Florida. Other participants were located in the Jacksonville Regional Service Center, Jacksonville, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

14 South Ninth Street

DeFuniak Springs, Florida 32433

For Respondent: Patricia Simmons, pro se

968 Southeast Browning Avenue Port St. Lucie, Florida 34983

STATEMENT OF THE ISSUE

The issue is whether the Education Practices Commission should suspend, revoke, or otherwise discipline Respondent’s certificate to teach school in the State of Florida.

PRELIMINARY STATEMENT

On May 15, 1995, Petitioner Frank T. Brogan, as Commissioner of Education (Petitioner), filed an Administrative Complaint against Respondent Patricia Simmons (Respondent). The complaint alleged that Respondent had violated Section 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.

Respondent requested a formal hearing pursuant to Section 231.262(5), Florida Statutes. The Education Practices Commission referred the case to the Division of Administrative Hearings on January 25, 1996.

Administrative Law Judge Charles C. Adams issued a Notice of Hearing scheduling this matter for formal hearing on

July 9, 1996. The Division of Administrative Hearings subsequently designated the undersigned as the Administrative Law Judge to conduct the formal hearing in this case.

On July 9, 1996, the undersigned granted Respondent’s Motion for Continuance and required the parties to file a status report in thirty days. Petitioner filed a Motion to Abate on

July 30, 1996, which the undersigned granted on August 7, 1996.

On October 2, 1996, the parties requested the undersigned to reschedule the case for formal hearing. By order dated October 11, 1996, the undersigned scheduled the hearing to commence on February 5, 1997.

Respondent’s counsel filed a Motion to Withdraw on January 22, 1997. That same day, Respondent filed a written

consent to the withdrawal of her attorney. On January 24, 1997, the undersigned granted the motion.

An Amended Notice of Video Hearing and Order of Instructions was issued on January 25, 1997. This notice advised the parties that the hearing would be conducted by video teleconference on February 5, 1997.

On January 28, 1997, Petitioner filed a Motion for Continuance. Petitioner’s efforts to contact Respondent as required by the Order of Instructions had been unsuccessful. The undersigned granted the motion and rescheduled the hearing for May 14, 1997, by order dated January 30, 1997.

A Second Amended Notice of Video Hearing and Order of Instructions was issued on February 17, 1997. The notice confirmed the May 14, 1997, hearing date. The order set forth new time frames for the filing of the prehearing stipulation, exhibit lists, and witness lists.

Petitioner filed a unilateral Prehearing Statement on May 5, 1997. This statement contained, among other things, a

copy of Petitioner’s witness and exhibit lists. Contrary to the Order of Instructions, Respondent did not file a Prehearing Statement. On May 7, 1997, the undersigned issued an Amended Order Designating Location of Video Hearing.

The undersigned conducted a pre-trial conference by telephone on May 13, 1997. During this conference, Respondent’s ore tenus Motion for Continuance was denied.

During the hearing, Petitioner presented the testimony of five witnesses and offered twenty-three exhibits which were accepted into evidence. Respondent testified on her own behalf and offered two exhibits. Petitioner objected to both of Respondent’s exhibits on several grounds, including Respondent’s failure to comply with the undersigned’s prehearing instructions regarding all proposed exhibits. The undersigned excluded Respondent’s first proposed exhibit during the hearing and reserved ruling on the admissibility of her second exhibit.

After review of the record, Petitioner’s objection to Respondent’s second proposed exhibit is sustained.

The transcript was filed with the Clerk of the Division of Administrative Hearings on May 29, 1997. The parties’ proposed recommended orders were due to be filed on June 9, 1997.

Petitioner timely filed his proposed findings of fact and conclusions of law on June 4, 1997. Respondent filed her proposed order on June 17, 1997. The undersigned did not consider Respondent’s proposed order because it was untimely.

FINDINGS OF FACT

1. Respondent is certified to teach in the area of Mentally Handicapped. Her Florida teaching certificate, number 637203, is valid through June 30, 1999.

2. Respondent received a satisfactory evaluation of her teaching performance in Duval County for four years prior to the 1992-1993 school year.

3. While teaching at C. G. Woodson Elementary School in Duval County, Respondent helped establish a mobility room for students in the Exceptional Student Education (ESE) program. She also played an important role in the creation of a parent center. She initiated the school’s participation in the foster grandparent program.

4. During the 1992-1993 school year, the Duval County School District employed Respondent as a teacher in a self- contained Exceptional Student Education (ESE) classroom at

   C. G. Woodson Elementary School. Her students included pre- kindergarten, kindergarten, and first grade students who were designated as Trainable Mentally Handicapped (TMH).

5. Respondent’s principal at C. G. Woodson Elementary School was Ms. Gloridan Norris. In 1992, Ms. Norris observed Respondent in classroom situations that caused her great concern. As a result, Ms. Norris and district ESE personnel began providing Respondent with on-going technical assistance. Respondent denied that she had any problems and did not cooperate with the efforts to alleviate Ms. Norris’s concerns.

6. On or about March 11, 1993, Ms. Norris signed an annual evaluation of Respondent’s performance for the 1992-1993 school year. Competent persuasive evidence supports this evaluation

   which rated Respondent unsatisfactory in five of eight categories: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter;

   (c) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; and (e) demonstrates a commitment to professional growth. Respondent’s overall evaluation was unsatisfactory.

7. By letter dated May 10, 1993, the Duval County Superintendent of Schools advised Respondent that she would be discharged if she did not reach a satisfactory level of performance. It also informed her that she had the option of transferring to a new teaching position within the county. Respondent elected to transfer to another school.

8. For the 1993-1994 school year, the Duval County School District assigned Respondent to teach at Mary McCloud Bethune Elementary School. Mr. William West was her principal. Respondent’s class for this school term consisted of fourth and fifth grade Educable Mentally Handicapped (EMH) students. Her class had twelve students, making it the smallest ESE class in the school.

9. On or about August 2, 1993, Mr. West requested technical assistance for Respondent from the school district’s office of ESE Instructional Program Support. He specifically requested

   recommendations for Respondent in the area of classroom and behavior management. Pursuant to that request, the school district’s ESE staff visited Respondent’s classroom five times between September 8, 1993 and October 4, 1993. Dory Reese, Specialist in Intellectual Disabilities, prepared a report containing recommendations for Respondent’s immediate implementation. These recommendations included, but were not limited to these: (a) methods to gain control of the classroom so that instruction can begin; (b) how to follow through on any directions; (c) how to discipline; (d) how to be positive in giving directions; (e) how to stop a specific behavior; and

   (f) how to regain control which has been lost.

   
   

10. In the fall of 1993, Mr. West requested assistance for Respondent from the school district’s office of Professional Development. As a result of that request, Sheryl Hahn visited in Respondent’s classroom. Ms. Hahn is certified to teach mentally retarded students. She prepared a written success plan which listed specific objectives and strategies for Respondent to improve her classroom teaching performance. Ms. Hahn’s plan included objectives and strategies in the following areas:

    (a) ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) ability to use appropriate classroom management techniques; (d) maintaining accurate records; and (e) showing sensitivity to student needs by maintaining a positive school environment. Respondent and

    Ms. Hahn discussed the plan, including proposed completion dates for certain objectives, in a meeting on October 12, 1993.

11. On October 26, 1993, Mr. West prepared Respondent’s

    
    

    mid-year evaluation for the 1993-1994 school year. He found that her performance was unsatisfactory in five of eight categories:

    1. demonstrates ability to plan and deliver instruction;

       
       

    2. demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (C) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and

    (e) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings.

12. On October 27, 1993, Respondent was absent from work. The assistant principal, Ms. Rosa Thomas, had to stay with Respondent’s class until a substitute arrived. Respondent had not prepared lesson plans for her class. Another teacher had to share her class work with Respondent’s students.

13. On October 28, 1993, two of Respondent’s pupils left the classroom without permission. Respondent did not know where they were until they were located in the assistant principal’s office.

14. On November 2, 1993, a student left Respondent’s class and went to the school office without permission. Mr. West sent Respondent a memorandum, reminding her that it was dangerous for

    the children to leave the classroom without adult supervision. He was concerned for the safety of the children.

15. On November 5, 1993, a parent wrote a memorandum complaining that Respondent’s class was out of control. The parent requested that her child be transferred to another class.

16. On November 8, 1993, Mr. West requested a psychiatric evaluation for Respondent. Mr. West based his request on concerns for the safety of Respondent’s students, concerns for Respondent’s health, and concerns about the school’s program. Respondent was unable to maintain control of her classroom. She appeared to be depressed and lethargic.

17. During the week of November 12, 1993, one of Respondent’s pupils refused to get on the bus. The child walked home across a busy highway without supervision. Meanwhile,

    parents continued to call or visit Mr. West on a daily basis requesting that their child be removed from Respondent’s classroom.

18. On or about November 19, 1993, Mr. West observed Respondent’s classroom performance. He saw students leaving the room without permission, standing on top of desks, taunting the teacher, and fighting. At the end of the day when Mr. West mentioned her pending psychiatric evaluation, Respondent became loud and emotional and stormed from the room. Mr. West wrote a letter to the Assistant Superintendent of Schools, expressing fear for the safety of the children. He requested that Respondent be removed from the classroom immediately.

19. Late in November or early in December of 1993, Mr. West removed Respondent from her regular teaching position. He assigned her a new duty, one-on-one tutoring of ESE students.

20. On or about December 15, 1993, Mr. West wrote another letter to the Assistant Superintendent of Schools. This letter expressed Mr. West’s fear regarding the safety of adults working with Respondent. During a meeting, Respondent became angry with support staff. She glared at the other adults, mumbled under her breath, and scribbled so hard on a paper that she tore it.

    Mr. West requested that Respondent be removed from the school setting.

21. In January of 1994, Respondent returned to her regular classroom for the first time in several weeks. Mr. West observed

    her while she was teaching a lesson. He saw a student standing on top of a table and other students wrestling. The students appeared to ignore Respondent’s attempts to restore order. At times, Respondent appeared to ignore the chaos around her. After this observation, Mr. West told Respondent to return to her assigned duty of tutoring ESE students. Mr. West again requested that the school district remove Respondent from the school and place her in a non-teaching position.

22. A memorandum dated January 27, 1994, advised Respondent that she would receive an unsatisfactory evaluation for the

    1993-1994 school year.

    
    

23. On March 10, 1994, Mr. West signed Respondent’s annual evaluation for the 1993-1994 school year. She received unsatisfactory ratings in six of eight categories:

    1. demonstrates ability to plan and deliver instruction;

       
       

    2. demonstrates knowledge of subject matter; (c)demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline;

    (d) shows sensitivity to student needs by maintaining positive school environment; (e) demonstrates abilities to evaluate instructional needs of students; and (f) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings.

24. On or about April 25, 1994, the Duval County School Board notified Respondent that it intended to terminate her employment.

25. On or about July 11, 1994, Respondent and the Duval County School Board entered into an agreement in which Respondent agreed to resign her teaching position.

26. Clear and convincing evidence indicates that Respondent is not competent to teach or to perform the duties of an employee in a public school system. She is not competent to teach in or operate a private school. Most importantly, Respondent is incapable of providing a safe environment for students in her classroom.

    CONCLUSIONS OF LAW

    
    

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

28. Petitioner has the burden of proving by clear and convincing evidence that Respondent’s Florida teaching certificate should be suspended, revoked, or otherwise disciplined. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

29. Section 231.28, Florida Statutes, provides in pertinent part:

    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:

       * * *

       (b) has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

       * * *

       (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.

       
       

30. Rule 6B-1.006(2), Florida Administrative Code, provides that a violation of any of the Principles of Professional Conduct of the Education Profession in Florida "shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law."

31. Rule 6B-1.006(3)(a), Florida Administrative Code, requires the educator to make a reasonable effort to protect the student from conditions that are (a) harmful to learning;

    1. harmful to a student’s mental or physical health; or

       
       

    2. harmful to the safety of students.

    
    

32. Rule 6B-11.007, Florida Administrative Code sets forth the disciplinary guidelines for the Education Practices Commission. The guidelines provide for a penalty, ranging from a

    suspension to a revocation of the teaching certificate based upon proof of incompetence. The undersigned has considered the guidelines in light of the facts presented here.

33. Petitioner has presented clear and convincing evidence that Respondent’s teaching certificate should be revoked for one year based on findings that she is incompetent to teach in a public or private school. Petitioner has also carried its burden of proving that Respondent has acted in an unprofessional manner. She has failed to protect students from conditions harmful to learning and to their health and safety. Disciplinary action is warranted for each of the alleged violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission revoke Petitioner’s teaching certificate for one year from the date of the Final Order.

DONE AND ENTERED this 2nd day of July, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997.

COPIES FURNISHED:

J. David Holder, Esquire

14 South Ninth Street

DeFuniak Springs, Florida 32433

Patricia Simmons

968 Southeast Browning Avenue Port St. Lucie, Florida 34983

Karen Barr Wilde, Executive Director Education Practices Commission

224-B Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

325 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, Esquire Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000441

Orders for Case No: 96-000441