STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 97-2908

)

SALLIE M. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 4 and 5, 1999, at Okeechobee, Florida, before

1. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Bruce P. Taylor, Esquire

   Post Office Box 131 701 Mirror Lake Drive Apartment 109

   St. Petersburg, Florida 33701-131

   
   

   For Respondent: Sallie M. Smith, pro se

   2605 Chesterfield Drive Fort Pierce, Florida 34982

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

   PRELIMINARY STATEMENT

   
   

   This case began on May 7, 1997 when Frank T. Brogan, as Commissioner of Education, filed an Administrative Complaint

   against the Respondent, Sallie M. Smith. Such complaint alleged that Respondent had committed misconduct in the performance of her duties while employed by the Washington County School Program. More specifically, the Complaint alleged Respondent had used inappropriate, unprofessional language toward employees at the facility and had used disparaging language toward students.

   Respondent denied the allegations and timely requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1997.

   At the hearing, Petitioner’s request to amend the Administrative Complaint was granted. Without objection from Respondent, the dates set forth in paragraphs 1 and 5 were corrected. Petitioner also requested that the style of the case be amended to denote the current Commissioner of Education, Tom Gallagher. The request was granted.

   In support of the amended complaint, Petitioner presented testimony from ten witnesses. Petitioner’s Exhibits

   numbered 1-13 were admitted into evidence. The Respondent testified in her own behalf and offered testimony from nine witnesses. Respondent’s Exhibits numbered 2-8 were also admitted into evidence.

   The Transcript of the proceedings was filed with the Division of Administrative Hearings on March 8, 1999. At the conclusion of the hearing, the parties were directed to file their proposed recommended orders within ten days of the filing

   of the transcript. By letter filed March 18, 1999, the Respondent requested additional time to file her proposed order. On April 1, 1999, the parties were granted leave until 5:00 p.m., April 15, 1999, to file proposed recommended orders. Thereafter, Petitioner opposed the extension of time afforded Respondent and alleged that Petitioner was not provided a copy of Respondent’s letter requesting the extension, that Petitioner had timely filed a proposed order, and that the extension provided Respondent with an unfair advantage. By order entered April 8, 1999, Petitioner was granted ten days’ leave from the filing of Respondent’s proposed order to respond to Respondent’s argument. Respondent’s Proposed Order was filed on April 15, 1999. Petitioner has not filed additional argument.

   FINDINGS OF FACT

   
   

   1. Petitioner, as the Commissioner of Education, on behalf of the Education Practices Commission, is the state agency charged with the responsibility of disciplining teachers certified by the State of Florida.

   2. At all times material to the allegations of this case, Respondent held a Florida Educator’s Certificate, number 615411, covering the areas of physical education and health education which is valid through June 30, 2003.

   3. The juvenile justice system operates a facility for incarcerated minor males located in Okeechobee County, Florida. The facility, named the Eckerd Youth Detention Center (Eckerd), contracts with the Washington County School Program to provide

      educational services for the minor males.

      
      

   4. At all times pertinent to the allegations of this case, Respondent was employed by Washington County at Eckerd to teach physical education.

      
      

   5. On or about April 21, 1994, Respondent used inappropriate language toward an employee at Eckerd. Specifically, Respondent called a disciplinary dean a "nigger." During this heated encounter, which was provoked by Respondent, the dean also used inappropriate language toward Respondent and he was subsequently reprimanded for such conduct.

   6. Respondent told another employee at Eckerd that the dean "had a body odor that don’t stop."

   7. On another occasion, Respondent was unnecessarily loud in accusing an instructor in the Diversified Career Training (DCT) program of providing contraband to one of the students. This incident occurred in the office of the DCT administrator and, despite efforts to get the Respondent to be quiet, resulted in an inappropriate, public accusation of the painting instructor.

   8. During the 1993/94 school year, students complained that Respondent called them inappropriate names such as "crack babies." Two Eckerd employees overheard Respondent’s language and confirmed the allegations made by the students.

   9. It is not, however, confirmed that all student allegations were accurate. The students at Eckerd were there due

      to their serious behavioral problems. Many were aggressive.

      
      

      Some were violent. All were deemed less than credible on occasion. Had they been model students, they would not have been placed at Eckerd.

   10. Nevertheless, these students were entitled to the same considerations given to all students governed by state rules. That is, they should not be subject to disparaging remarks.

   11. Prior to the 1993/94 school year, Respondent was advised that she needed to improve areas of her performance at Eckerd. Specifically, Respondent was told of a need to maintain appropriate interpersonal relationships and to improve in the evaluation of students. Respondent was also advised that her abrasive and inappropriate vocabulary needed improvement.

   12. On March 29, 1994, the administrative staff of the Washington County School Board decided to not re-employ Respondent for the following school year. Notification of this decision was provided to Respondent on March 30, 1994.

   13. On May 10, 1994, Respondent was suspended from her duties for the remainder of the school year.

   14. Respondent argues that the actions of the school to terminate her employment (and inferentially this action) were in retaliation for Respondent’s claims of violations of various requirements concerning exceptional education students. Respondent suggested that various records were not maintained as required by law. Such argument has not been deemed credible or persuasive.

   15. Moreover, Respondent’s complaint with regard to these allegations was resolved in favor of the school system.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   17. Petitioner bears the burden of proof in this case to establish by clear and convincing evidence the allegations against the Respondent. It has met that burden.

   18. Disparaging language toward students violates Rule 6B-1.006(3), Florida Administrative Code. This rule provides, in pertinent part:

       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.

             
             

   19. Using inappropriate language toward students also fails to protect them from conditions harmful to learning. See Rule

       6B-1.006(3)(a), Florida Administrative Code.

       
       

   20. Petitioner has established that Respondent on more than one occasion used inappropriate language toward a student. Respondent was obligated to protect the student from conditions harmful to learning. Denigrating comments to students do not promote learning.

   21. Finally, Respondent’s conduct and language toward co-

       workers at Eckerd evidenced a disregard for her professional responsibilities under Rule 6B-1.006(5), Florida Administrative Code. While the incidents complained of were isolated and specific, Respondent nevertheless failed to accord a proper collegial relationship with other Eckerd staff.

   22. Section 231.28, Florida Statutes, provides, in 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; 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:

       * * *

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

   23. Section 231.262, Florida Statutes, provides, in part: (1)(a) The department shall cause to be

       investigated expeditiously any complaint which is filed before it or which is otherwise called to its attention which, if legally sufficient, contains grounds for the revocation or suspension of a certificate or any other appropriate penalty as set forth in subsection (6). The complaint is legally sufficient if it contains the ultimate facts which show a violation has occurred as provided in s. 231.28. The department may investigate or continue to investigate and

       take appropriate action in a complaint even though the original complainant withdraws the complaint or otherwise indicates a desire not to cause it to be investigated or prosecuted to completion. The department may investigate or continue to investigate and take action on a complaint filed against a person whose teaching certificate has expired if the act or acts which are the basis for the complaint were allegedly committed while that person possessed a teaching certificate.

       * * *

       1. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

          1. Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification,

             
             

             and that the department may refuse to consider that applicant's application, for a specified period of time or permanently.

          2. Revocation or suspension of a certificate.

          3. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

          4. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation.

          5. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

          6. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

          7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts

       committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

       * * *

       (8) All moneys collected by, or awarded to, the commission as fees, fines, penalties, or costs shall be deposited into the Educational Certification and Service Trust Fund pursuant to s. 231.30.

       
       

   24. It is undisputed that the environment at the Eckerd facility created an educational challenge to those involved in the counseling and teaching of a difficult student population. Instances of aggressive behaviors toward the staff, of vile language, and of unpredictable outbursts were not uncommon. Respondent’s desire to express her opinions and reactions to the activities in an inappropriate manner is not conduct protected by the First Amendment. Professional educators are called to a state standard set forth by rule. Lapses in one’s ability to comply with that standard cannot be justified by circumstances of a particular trying moment. Moreover, the documentation of Respondent's lapses was not in retaliation of any lawful claim made by Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the violations set forth above, requiring Respondent to take appropriate remedial courses to improve her interpersonal skills, and imposing an administrative fine in the amount of $1000.00.

DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Bruce P. Taylor, Esquire Post Office Box 131

701 Mirror Lake Drive Apartment 109

St. Petersburg, Florida 33731-0131

Sallie M. Smith

2605 Chesterfield Drive Fort Pierce, Florida 34982

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: 97-002908

Orders for Case No: 97-002908