vs. ) Case No. 99-3311
KELLY L. BRADLEY, )
Respondent. )
This case came on for a disputed-fact hearing on March 23, 2000, in Jacksonville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Ernst D. Mueller, Esquire
For Respondent: Donald E. Pinaud, Jr., Esquire
Kattman & Pinaud, P.A. 4069 Atlantic Boulevard
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
This cause was referred to the Division of Administrative Hearings on or about August 4, 1999.
Following several continuances and other activity reflected in the file, the disputed-fact hearing was held, by agreement, on March 23, 2000.
The parties' Prehearing Stipulation was admitted as Administrative Law Judge's Exhibit 1. Petitioner School Board presented the oral testimony of Patricia G. Benton, Hazel Thomas Morningstar, Gail Denise Brown, Eric Lee, Carolyn Faison Davis, and Christine Arab. Petitioner's Exhibits 1-4, 5A-C, 6A-C, and 7-13 were admitted in evidence, including Respondent's
deposition. Respondent testified on her own behalf and presented the oral testimony of Carolyn Faison Davis. Respondent's Exhibits 1-4 were admitted in evidence, including the deposition of Kristy James.
A Transcript was filed on April 10, 2000.
The parties' respective Proposed Recommended Orders were filed timely thereafter, and have been considered.
Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board.
Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline.
During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor.
A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members.
Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but
neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors.
Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday.
Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents.
Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency.
Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip.
Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1
Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip.
Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone.
Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any
chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone.
The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton.
Ms. Benton's son was never considered either a responsible adult or a chaperone.
Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful
children. Neither teacher inquired of Ms. Benton if she could or would swim.
Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim.
This was Respondent's first overnight field trip.
As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership.
The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999.
After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments.
At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks.
These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of
responsibility for any child occurred after the group departed Sea World.
In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool.
Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready.
The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool.
Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water.
Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR.
Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area.
Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis.
Joey James and Ms. Morningstar arrived at the pool dressed to swim.
Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming.
The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool.
Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and
told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether.
Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim.
At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior.
Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool.
Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end.
Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent
told her, "Well, you can come in here and I'll show you how to kick your feet."
Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34).
Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time.
Respondent, Makia, and Jessica then returned to the pool and were playing around.
Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna.
Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim.
When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water.
Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either.
At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them.
After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts,
Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time.
Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area.
Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor.
Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool.
Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts
would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students.
Ms. Morningstar immediately went to the pool area, carrying the T-shirts.
Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man.
The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a
long-time Safety Patrol sponsor.3
On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again.
Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim."
Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me."
Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza.
At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed.
Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from
Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4
The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning
Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside.
Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their
role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher.
There is no School Board policy defining the duties of "chaperones."
The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy.
Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator.
Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the
School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
The charges herein are that Respondent failed to make reasonable efforts to protect Litoria Gibson and other students from conditions harmful to their physical safety by failing to ascertain which, if any, of the students in her charge had the ability to swim, and which, if any, of the adult chaperones had the capacity to swim and take responsible action in the event of an emergency, and by leaving the poolside where her students were swimming without taking reasonable steps to ensure that another adult had accepted the responsibility of watching the students in the swimming pool.
Petitioner asserts that Respondent's actions constitute a violation of a regulation relating to the public school system, Rule 6B-1.006(3)(a), Florida Administrative Code, which provides:
Obligation to the student requires that the individual:
shall make reasonable effort to protect the student's mental and/or physical health and/or safety.
Petitioner further asserts that by these alleged acts and omissions, Respondent has violated Section 231.36(1)(a) by misconduct in office and/or willful neglect of duty.
Section 231.36(1)(a), Florida Statutes, reads:
Contracts with instructional staff, supervisors and principals:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to Section 231.17, or employed pursuant to Section 231.1725, and shall be entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
Rule 6B-4.009(3) and (4), Florida Administrative Code, are also of note because they define "misconduct in office" and "willful neglect of duties," as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in stature, and
given by and with proper authority. (Emphasis supplied).
Petitioner seeks the extreme penalty of termination of a tenured contract, due to the grave consequence of Litoria's death.
The duty to go forward and prove the allegations by a preponderance of the evidence is upon Petitioner School Board. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990); Cf-Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), pertaining to the higher burden of clear and convincing evidence for terminating a license to teach. However, herein, the higher burden has been met.
There is, however, no evidence to suggest that Respondent is guilty of gross insubordination or willful neglect of duties under the foregoing definitions.
Also, teachers and schools are not absolute insurers of students' safety, nor are they strictly liable for all injuries to students. La Petite Academy, Inc. v. Naseef, 674 So. 2d 181 (Fla. 2nd DCA 1996); Broward County School Board v. Ruiz, 493 So. 2d 474 (Fla. 4th DCA 1986); Collins v. School Board of Broward County, 471 So. 2d 560 (Fla. 4th DCA 1985).
Ms. Arab made a good point when she observed that ". .
. there's a lot of blame to go around." The permission slips were inadequate, but it is astounding that Litoria's parents did not affirmatively inform either teacher that Litoria could not
swim and was not allowed in the water; that, even in the illumination of hindsight, adult "chaperones" could testify they were on the field trip only to watch specific children; and that any adult with knowledge some children could not swim, left them alone in the water in either the deep or the shallow end of the pool, especially with a dangerous "toy" like a snorkel-face mask, because even good swimmers can very quickly drown in as little as two inches of water under certain circumstances. See Henry Grady Hotel Corporation v. Watts, 167 S.E. 2d 205 (Ga. Ct. of Appeals, Div. 2, 1969), cited for facts only.
Litoria drowned, but the legal proximate cause of Litoria's death is undetermined. In any case, the School Board may not discipline Respondent for the outcome, but only for her acts or omissions as a teacher. Concomitantly, even if intervening, contributing, or multiple factors existed, those factors do not eliminate Respondent's responsibility as a teacher. As a teacher and co-sponsor of the field trip, Respondent was charged with the standard of care of an ordinarily prudent person in the same circumstances. La Petite Academy, Inc. v. Naseef, supra; Roberson v. Duval County School Board, 618 So. 2d 360 (Fla. 1st DCA 1993); Broward County School Board v. Ruiz, supra., Collins v. School Board of Broward County, supra., Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982).
Ms. James's permission slips were inadequate because they did not clearly inquire if a child could swim and did not
clearly elicit permission for that child to swim, but Respondent never looked at them. Respondent never even attempted to determine which children could swim and which could not.
However, Respondent was on notice that the permission slips were defective when she discovered Makia could not swim. At that point, she should have inquired of the other children whether they could swim and adjusted her supervision accordingly. This would be an ordinarily prudent move of a group leader in the absence of a life guard. For the entire field trip, not just the swimming portion, Respondent and/or Ms. James, as co-sponsors, had the obligation to be present and vigilant against physical harm to the children at all times or to otherwise affirmatively delegate their responsibility to someone who accepted that responsibility and was capable of performing it when both teachers were absent. When all the other adults had gathered in the motel corridor, two fully-dressed women (Ms. Brown and Ms.
Benton), whose swimming abilities were never inquired-into and who were never clearly informed that they were in charge, were insufficient protection for the children at the pool.
Respondent's instructions to Ms. Morningstar were better than the instructions to Brown and Benton but were also clearly insufficient. Finally, any two people could have carried the six pizzas. Respondent's private consultation with Ms. James at that moment was not an emergency and did not excuse the two teachers both being absent from the pool area simultaneously. Since Ms.
James had to pay the delivery man, Respondent should have returned to the pool to supervise the children.
The Florida case closest on point appears to be School Board of Dade County v. Martin, et al, consolidated DOAH Case Nos. 88-5637, 88-5639, and 88-5832 (Recommended Order entered September 6, 1989). Therein, three United States Army retirees with temporary teaching certificates employed as annual contract teachers for the Junior Reserve Officer Training Corps at Miami Jackson Senior High School were charged with misconduct and incompetency pursuant to Sections 231.09, 231.36(1)(a), and 231.36(6)(a), Florida Statutes, and Rules 6B-4.009 and 6B-1.006, Florida Administrative Code, in connection with the drowning of a student in Snake Creek on a field trip. After examining the teachers' respective degrees of guilt based on their failure to follow specific School Board-adopted procedures for field trips through willful disobedience, carelessness, or ignorance of the policies, then-Hearing Officer Joyous Parrish came to the conclusion that all three teachers were guilty of misconduct, including the teacher who did not intentionally violate the School Board procedures but who violated them out of ignorance, because that teacher also had an obligation to protect students from potentially harmful situations and he failed to protect them. She recommended the suspension without pay of all three teachers for six months. Her recommendation was adopted in toto by the School Board's Final Order entered October 4, 1989.
Herein, it is not Respondent's violation of specific School Board policy that is at issue. Herein, Respondent's failure of planning, supervision, forethought, and anticipation of consequences rendered her an ineffective teacher on a specific field trip. It is also clear from her own testimony that even as of the date of hearing, Respondent had little insight when in the chain of events her actions might have changed the tragic outcome.
Defenses to the effect that Respondent could absolutely defer to Ms. James's experience or that Respondent was not required to use good judgment or common sense because the School Board had no specific policies with regard to chaperones or swimming are not persuasive of Respondent's lack of guilt but do go to mitigation.
In light of Ms. James's position as mentor, Respondent's exemplary prior teaching record, the need in the educational system for persons with her teaching specialty, and the belief that she will learn from this experience, I also am not persuaded that Respondent is so completely ineffective as a teacher that she should be terminated.
RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative
Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom.
ELLA JANE P. DAVIS
1/ This information was provided by way of a stipulation as to hearsay statements of Litoria's mother, who did not testify.
2/ Respondent felt her instructions were more detailed as to supervision to be provided Ms. Morningstar. Ms. James claimed it was she who told Ms. Morningstar to stay at the pool and watch the students. However, based on the evidence as a whole, I find that any instructions, by whomever given, were no more specific than, "Check on the kids."
3/ Respondent stated that she personally accompanied Ms. James to retrieve the pizzas because Ms. Bradley wished to speak privately with Ms. James and obtain her advice because Mr. Lee had just told her that Ms. Morningstar had said she intended to leave the motel property in the evening, and Respondent thought this was impermissible.
4/ There is some controversy over where Joey James and Mr. Lee were while Ms. Morningstar was proceeding to the picnic area and when the screaming began. Ms. Morningstar testified Joey and Eric were carrying the cooler in front of her and that she got to the picnic area, popped a can of soda from the cooler already delivered by Joey and Eric, and heard the screaming from the deep end of the pool. Mr. Lee claimed the two men carried the cooler behind Ms. Morningstar and that just as they set the cooler down, they heard a scream from the deep end of the pool. Kristy James testified that Joey James was in the lobby with herself and Respondent when they were notified of an accident at the pool.
Ernst D. Mueller, Esquire City of Jacksonville
Donald E. Pinaud, Jr., Esquire Kattman & Pinaud, P.A.
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
John C. Fryer, Jr., Superintendent Duval County School Board
Michael H. Olenick, General Counsel Department of Education
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.
