STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as COMMISSIONER ) OF EDUCATION )

)

Petitioner, )

)

vs. ) Case No. 97-0555

)

JOEL M. BURKI, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 23, 1997, a formal administrative hearing was held in this case in St. Petersburg, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

501 First Avenue North Suite 600

St. Petersburg, Florida 33701

For Respondent: Mark Herdman, Esquire

HERDMAN and SAKELLARIDES, P.A.

2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue for determination in this case is whether Respondent’s Florida Educator’s Certificate should be revoked or otherwise disciplined for misconduct as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On December 19, 1996, Petitioner, FRANK T. BROGAN, as Commissioner of Education, filed a four-count Administrative Complaint charging Respondent, JOEL M. BURKI, with violations of Sections 231.28(1)(f), 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code. Specifically, the Administrative Complaint charged Respondent with inappropriate use of force on students. The Administrative Complaint sought permanent revocation, or other discipline of Respondent’s teaching certificate in Florida. Respondent filed a timely request for formal administrative hearing disputing the factual allegations of the Administrative Complaint. On February 3, 1997, the matter was referred to the Division of Administrative Hearings, and set for hearing on May 23, 1997.

Pursuant to the Prehearing Order, on May 16, 1997, the parties filed a prehearing statement stipulating to the facts alleged in paragraphs 1, 2, 3, 5, and 6 of the Administrative Complaint. At hearing, Petitioner presented the testimony of six witnesses: Sandra Leanes, former principal at the St. Pete Challenge School; James Michael Barker, administrator with the Pinellas County School Board, Office of Professional Standards; Denise T. Miller, principal of the St. Pete Challenge School; and minor students identified for these purposes as C.G., B.W., and

1. Petitioner also presented two exhibits which were received

   in evidence. At hearing, Petitioner made an ore tenus motion for leave to amend the Administrative Complaint, to which Respondent objected. As more fully set forth below, Petitioner’s motion is DENIED.

   Respondent testified in his own behalf, and presented the testimony of one character witness, Irwin H. Miller.

   
   

   The transcript of the hearing was filed on May 29, 1997. Respondent filed a Proposed Recommended Order on June 9, 1997, and without objection, Petitioner filed a Proposed Recommended Order on July 1, 1997.

   FINDINGS OF FACT

   
   

   1. Petitioner, FRANK T. BROGAN, as Florida Commissioner of Education, is statutorily responsible for maintaining teaching certification standards, and is authorized to enforce the provisions of Chapter 231, Florida Statutes.

   2. Respondent, JOEL M. BURKI, at all material times hereto, was a certified teacher in the State of Florida.

      STIPULATED FACTS

      
      

   3. Respondent holds Florida Educator’s Certificate 686763, covering the area of Art Education, which is valid through June 30, 1997.

   4. At all times pertinent hereto, Respondent was employed as an alternative education teacher at St. Pete Challenge School in the Pinellas County School District.

   5. During 1992, Respondent was reported to Professional Practices Services for allegedly using excessive force with students. On or about September 22, 1992, the Department of Education and Respondent entered into a Deferred Prosecution Agreement extending through the end of the first semester of the 1992-1993 school year. Respondent satisfactorily completed the agreement, and on or about April 9, 1993, the Commissioner issued a finding of no probable cause to take disciplinary action concerning his educator’s ceritficate.

   6. On or about January 30, 1996, the Pinellas County School District investigated Respondent for allegedly engaging in inappropriate conduct with students. The district subsequently reported Respondent to Professional Practices Services.

   7. On or about March 20, 1996, Respondent resigned his teaching position effective March 22, 1996.

      THE ALLEGED INCIDENT OF MISCONDUCT

      
      

      
      

   8. An incident occurred at the St. Pete Challenge School at some time shortly after January 26, 1996, in which five male students, aged nine-to-ten years old, fell down at the door outside Respondent’s art and music classroom. As a result of this incident one student suffered a cut lip, and one other complained of a headache.

   9. The students involved in this incident initially had been disrupting Respondent’s class prior to roll call. Respondent had instructed these students to wait outside the classroom door

      until Respondent attended to the remaining students in the classroom. Respondent then intended to address this disciplinary situation. The five misbehaving students were outside for a very short period of time when they observed another teacher approaching. Upon seeing the teacher approaching, the five students attempted to re-enter Respondent’s classroom; however, Respondent at this time was also opening the door from the other side. The force of Respondent opening the door caused a chain reaction resulting in the fall of the five students on the outside of the door.

   10. The injured students were taken to the front office for treatment. None of the injuries sustained was serious.

   11. Respondent did not intend to cause any physical contact with the five students, nor to cause any physical harm to the students. Respondent was not physically abusive to the five students involved in this incident.

   12. It is the policy of the Pinellas County School District that a teacher shall not use physical force upon a student absent extraordinary circumstances which require physical intervention for the protection of other students or school personnel.

   13. Respondent in this incident did not use physical force in a manner inconsistent with the policy of the Pinellas County School District.

   14. Respondent is considered mild-mannered, cordial, and friendly in both his professional and personal capacities.

       MOTION FOR LEAVE TO AMEND THE ADMINISTRATIVE COMPLAINT

       
       

   15. The Administrative Complaint filed in this matter alleged in paragraph 4 that "Respondent grabbed minor student

       J.M. and pushed him," and "Respondent also pushed minor student,”

       
       

       A.H. into other students causing A.H. and the other students to fall." No evidence was presented at final hearing to support these allegations; however, there was testimony from minor student, K.D., that Respondent pushed another of these students, B.W., which then caused the chain reaction fall. Petitioner, accordingly, made an ore tenus motion for leave to amend the administrative complaint to conform to the evidence.

       
       

   16. The student in question, B.W., testified at final hearing and did not state that Respondent pushed him. On cross- examination, B.W. testified that Respondent pushed some other unidentified student during the incident. There was no clear and consistent evidence that Respondent pushed any identified student including B.W. or A.H. during this incident. Another student involved in the incident, C.G., who also testified at final hearing, on cross-examination confirmed Respondent's account of this occurrence.

       CONCLUSIONS OF LAW

       
       

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

   18. The Administrative Complaint filed in this matter charges Respondent with violations of Sections 238.28(1)(f) and (i), Florida Statutes which provide:

       1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in Section 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; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that such person:

       2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the school board.

       3. Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules; or

   19. The Administrative Complaint further charges Respondent with violating Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), which provide:

       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.

             * * *

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

             
             

   20. Disciplinary licensure proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

       281 So. 2d 487 (Fla. 1973). In this disciplinary licensure

       proceeding the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

   21. “Clear and convincing evidence” requires evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; 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. Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

   22. The evidence in this case fails to meet the required standard of proof. The testimony of the students involved in this matter is unclear and inconsistent. As indicated above, one of the students involved in this incident actually confirmed Respondent’s account of the occurrence. The other two students involved in this incident, and who testified at hearing, are unclear and inconsistent in the identification of the student Respondent is alleged to have physically contacted.

   23. As to Petitioner’s Motion to Amend the Administrative Complaint, there is no evidence to support the material allegations of paragraph 4 of the Administrative Complaint. Petitioner’s ore tenus motion to amend the Administrative Complaint to conform to the evidence, even if granted, would not resolve the evidentiary failure in this case. Moreover, the

       amendment of the Administrative Complaint with regard to identification of different students involved in the alleged pushing incident is highly prejudicial to Respondent’s notice of the charges against him, and opportunity to defend. Accordingly, the Petitioner’s Motion to Amend the Administrative Complaint is DENIED.

   24. The evidence presented in this matter is not clear and convincing and fails to support the conclusion that Respondent engaged in any inappropriate physical force with regard to the incident alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint filed in this matter.

DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1997.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

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

Mark Herdman, Esquire

HERDMAN and SAKELLARIDES, P.A.

2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Karen B. Wilde, Executive Director Education Practices Commission

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

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: 97-000555

Orders for Case No: 97-000555