STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) Case No. 97-1718

)

NOVEMBER E. YOUNG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 23, 1997, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Ron Weaver and Associates, P.A.

122 South Calhoun Street Tallahassee, Florida 32301

For Respondent: Paul Kwilecki, Jr.

433 Silver Beach Avenue Daytona Beach, Florida 32118

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code, and if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On or about February 26, 1997, Petitioner Frank T. Brogan, as Commissioner of Education, filed an Administrative Complaint against Respondent November E. Young. Said complaint alleged that Respondent had violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code.

On April 1, 1997, Respondent filed a request for a formal hearing with the Education Practices Commission. Respondent's request disputed all allegations of the Administrative Complaint. The Education Practices Commission referred this case to the Division of Administrative Hearings on April 7, 1997.

After receiving responses to the Initial Order, the undersigned issued a Notice of Hearing scheduling this matter for hearing on July 23, 1997. During the hearing, Petitioner presented the testimony of four witnesses and offered eight exhibits which were accepted into evidence. Respondent testified on her own behalf and presented six exhibits which were accepted into evidence.

A transcript of the proceeding was filed on August 12, 1997. Respondent filed a proposed recommended order on August 14, 1997. Petitioner filed a proposed recommended order on August 26, 1997.

FINDINGS OF FACT

1. Respondent is licensed to teach emotionally handicapped children in the elementary schools of Florida. She holds Florida teaching certificate number 696889 which is valid through

   June 30, 1998.

   
   

2. At all times material to this proceeding, Respondent was employed by the Volusia County School Board as a teacher of emotionally handicapped children in a self-contained classroom at New Smyrna Middle School. Prior to November 13, 1995, Respondent had no prior disciplinary history.

3. The 1995-96 school year was Respondent's first year as a teacher at New Smyrna Middle School. Her previous teaching experience consisted of serving as a resource teacher. In that circumstance the students went to Respondent's class for a portion of the school day for instruction in certain academic areas.

4. In August of 1995, Respondent requested a conference with the assistant principal, Sue Wolter. One of the items that Respondent wanted to discuss was the procedure she should follow in case a student had a weapon in the classroom.

5. Ms. Wolter instructed Respondent that she should press the buzzer in the classroom three times. When the office staff receives this signal, they know there is a severe problem in the classroom. When a teacher presses the buzzer a light turns on beside the room number. Ms. Wolter also told Respondent that she could use the school intercom and say "Code 3" to alert the

   office about an emergency situation without letting the class know that she was calling for help. Lastly, Ms. Wolter advised Respondent to send her teaching assistant to the office for assistance. Respondent used these methods to summon help to her classroom on numerous occasions prior to the incident at issue here.

6. In November of 1995, Respondent's class consisted of 12 sixth-grade students. The students' chronological ages varied from 11-to-14 years of age.

7. Respondent's class consisted of students with "varying exceptionalities." Many of the students were dually diagnosed as having psychological and emotional disorders as well as mental retardation. The students' I.Q.'s were exceptionally low.

8. Respondent's students were impulsive, volatile, and often exhibited poor judgment. They had difficulty at times distinguishing between right and wrong. Therefore, it was essential for Respondent to exercise appropriate classroom control at all times.

9. Respondent had a difficult time maintaining discipline in the class. Students were frequently out of their seats or leaving the classroom without permission. Due to the chaotic classroom environment, several different teaching assistants were assigned to Respondent's classroom prior to November 13, 1995.

10. On November 13, 1995, Ms. Linda Baker was Respondent's teaching assistant. Respondent and Ms. Baker did not have a

    successful working relationship. Ms. Baker felt that Respondent was a poor classroom disciplinarian. Ms. Baker also resented what she perceived as Respondent's condescending attitude.

    Respondent, on the other hand, resented Ms. Baker's admitted refusal to follow instructions which, at times, amounted to blatant insubordination. As a result of their communication problems, Respondent often wrote notes to Ms. Baker setting forth her classroom duties instead of speaking to her directly.

11. Lavagus Brown, Michael Binder, and Klara Mills were students in Respondent's classroom on the morning of November 13, 1995. Klara Mills was the only girl in the class.

12. As class began that morning, Lavagus Brown told Respondent that Klara had something in her bag that the teacher should know about. Next, Michael Binder told Respondent that Klara had a knife in her bag.

13. Ms. Baker was sitting in the back of the room. She also heard from the children that Klara had a knife.

14. Respondent wrote a note to Ms. Baker and took it to her in the back of the classroom. Respondent asked Ms. Baker to take the note to the office and get an administrator. Respondent did not reveal the contents of the note or explain to Ms. Baker why it was necessary for an administrator to come to the classroom immediately.

15. Ms. Baker took the note and left the classroom. She returned later without an administrator. When questioned by

    Respondent, Ms. Baker told Respondent that she had delivered the note to the office. Respondent still did not discuss the seriousness of the situation with Ms. Baker.

16. Respondent asked Klara to get her things together so that they could go to the office. Klara took her backpack purse and left the room with Respondent. She did not take her bookbag with her.

17. Ms. Baker stayed in the classroom with the remaining students. She began taking the boys down the hall to the restroom.

18. In order to get to the main office, Respondent and Klara had to walk out of one building, down the main walkway past a second building, and into the second entrance of a third building. Respondent did not attempt to retrieve Klara's backpack purse during the walk through the campus.

19. When Respondent and Klara arrived at the office, Jasmine Gutierrez, a teacher's aide, was waiting in the outer office to see Ms. Wolter, who was in her office with the door partially closed. Cheryl Tucker, one of two secretaries, was also in the outer office. Ms. Tucker was busy answering the phone and writing passes for students. While she was waiting for Ms. Wolter, Ms. Jasmine Gutierrez helped Ms. Tucker write passes for students so they could go to class.

20. Respondent and Klara stood in a corner of the office where they had an argument. Klara denied that she had a knife,

    claiming that she only had a toy in her bookbag, which was still in the classroom. Klara wanted to go back to the classroom.

    Respondent wanted Klara to give an object to Respondent or someone that Klara trusted.

21. Respondent asked Ms. Tucker if Ms. Wolter was in the office. Ms. Tucker responded in the negative. Respondent then asked Ms. Tucker to watch Klara while she looked for an administrator.

22. Respondent did not see anyone in Ms. Wolter's office through the partially opened door. Respondent walked toward the office workroom to check her mailbox. Klara was still in the office when Respondent walked back toward the office and around a corner to go to the clinic. Respondent thought that Ms. Wolter might be in the clinic helping the nurse.

23. Unable to locate Ms. Wolter in the clinic, Respondent returned to the office. Ms. Tucker was no longer in the outer office. Ms. Debra Gutierrez, the main secretary, was at her desk next to the office door which was slowly closing. Klara was not in the office. Learning that Klara had returned to class, Respondent left the office without telling anyone in the office that Klara possibly had a knife in her possession.

24. Respondent caught up with Klara before she re-entered the classroom. Respondent told Klara to go to her desk and gather all of her things, including her backpack purse and bookbag, because they needed to return to the office.

25. When Respondent entered the classroom, Ms. Baker was sitting at her place in the back of the room. Respondent immediately began to deal with a student who was in the time-out room, screaming and yelling. Respondent attempted to calm the student down.

26. The time-out room is a small closet with a desk where students can go when they want to work undisturbed. Respondent also used the room for students who were behaving inappropriately and needed time to cool off before returning to class. At times, Respondent would put herself in the time-out room when she felt she was losing patience with the children.

27. While Respondent was in the time-out room with the other student, Ms. Baker took Klara to the restroom. In the hallway, Ms. Baker asked Klara if she had a knife. Klara denied having a knife.

28. As Ms. Baker and Klara entered the classroom, other students began asking Klara about her knife. Klara did not respond to their comments.

29. When Ms. Baker and Klara came back into the classroom, Respondent was standing in the doorway of the time-out room with the door partially closed. From that vantage point, Respondent could talk to the student who was upset and watch Klara who was sitting at her desk.

30. Ms. Baker sat at her place in the back of the room for a few minutes. Then she went to the office where she located

    Elaine Haskins and Lenny Carr, campus advisors, advising them that Klara possibly had a weapon in the classroom. Ms. Haskins used her walkie-talkie to advise Ms. Wolter that she and Mr. Carr were proceeding with Ms. Baker to Respondent's room because there was a problem.

31. When Ms. Haskins, Mr. Carr, and Ms. Baker arrived at Respondent's classroom, Klara was working quietly at her desk. Ms. Haskins entered the room and told Klara to get all of her things and accompany her to the office. Mr. Carr and Ms. Baker stayed in the hall.

32. At this time, Respondent was still in the time-out room with the other student. Ms. Haskins walked to the time-out room and knocked on the partially-open door. Ms. Haskins advised Respondent that she was taking Klara to the office. Respondent did not advise Ms. Haskins that Klara possibly had a knife.

33. Mr. Carr escorted Ms. Haskins and Klara back to the office. On the way, Ms. Haskins radioed Ms. Wolter to tell her that they were taking Klara to the office. Ms. Haskins told Ms. Wolter that Klara possibly had a weapon in her bag.

34. The school resource officer met the campus advisors and Klara in Ms. Wolter's office. Klara admitted to Ms. Wolter that she had a knife in her bookbag. As Klara emptied her bag on

    Ms. Wolter's desk, she took out a large hunting knife. The knife was approximately eight and three-quarter inches in length when

    the retractable blade was extended. The blade alone was four inches long.

35. Subsequently, Ms. Haskins went back to Respondent's classroom to tell her that Klara would not be coming back to class.

36. There is no persuasive evidence of the following admissions by Respondent: (a) to Ms. Haskins that she knew Klara had a knife and "just hadn't responded on that" and (b) to Ms. Baker that she (Respondent) was too busy to handle the situation with Klara and the knife.

37. About one week after the incident involving Klara, Respondent and Ms. Baker had a major disagreement. Ms. Baker was removed as the teaching assistant in Respondent's classroom.

38. Respondent knew from the beginning that she had a potentially dangerous situation in her classroom. The potential for violence created an extremely unsafe environment for all the children involved, including Klara.

39. The Volusia County School District's Student Code of Conduct states that possession of a weapon is a major offense which requires a recommendation of expulsion. Pending a decision on expulsion, a student will be suspended and lose all extracurricular privileges. Respondent was familiar with the Student Code of Conduct. However, the Volusia County School District has no written policy explaining the proper procedure a teacher should follow in searching a student when confronted with

    actual knowledge or a reasonable suspicion that the student has possession of a concealed weapon.

    CONCLUSIONS OF LAW

    
    

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

41. Petitioner has the burden of proving that Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules

    6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

42. The Education Practices Commission has authority to revoke, suspend, or otherwise discipline a teacher's certificate when the teacher violates the Principles of Professional Conduct for the Education Profession as prescribed by the State Board of Education Rules. Section 231.28(1)(i), Florida Statutes.

43. Rule 6B-1.006, Florida Administrative Code, provides as follows in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

    3. Obligations 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.

          
          

44. Petitioner has met its burden of proving that Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code. The evidence is clear and convincing that Respondent had reason to believe that Klara possessed a knife. She failed to take appropriate steps to retrieve the knife from Klara or to inform an administrator about the potentially dangerous situation. Therefore, Respondent failed to protect her students, including Klara, from conditions presenting a risk of physical harm.

45. Petitioner has not met its burden that Respondent violated Rule 6B-1.006(3)(e), Florida Administrative Code. The evidence is not clear and convincing that Respondent intentionally subjected Klara to unnecessary embarrassment or disparagement.

46. Pursuant to Rule 6B-11.007, Florida Administrative Code, the following mitigating factors have been considered:

1. Respondent had no prior disciplinary history,

2. At the time of the incident, Respondent had at least four successful years of experience working with emotionally handicapped children,

3. Respondent's violation caused no actual damage, physical or mental, or otherwise,

4. Respondent never actually saw a knife in Klara's possession,

5. Respondent could not rely on her teaching assistant to follow instructions; and

6. Respondent did not cause Klara any unnecessary embarrassment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Petitioner's teaching certificate for two weeks and imposing two years of probation.

DONE AND ENTERED this 16th day of September, 1997, 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 16th day of September, 1997.

COPIES FURNISHED:

Ron Weaver, Esquire

Ron Weaver and Associates, P.A. Post Office Box 10825 Tallahassee, Florida 32302-2865

Paul Kwilecki, Esquire

433 Silver Beach Avenue, Suite 104 Daytona Beach, Florida 32176

Kathleen M. Richards, Executive Director Department of Education

224-E 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

Jerry Whitmore, Program Director Professional Practices Services

352 Florida Education Center

325 West Gaines Street 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: 97-001718

Orders for Case No: 97-001718