STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-1011

)

ENGAR DENNARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings, conducted a final hearing in this case on August 23 and 24, 2000, in West

Palm Beach, Florida.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, Esquire

William L. Reitz, Esquire

Palm Beach County School Board 3318 Forest Hill Road, Suite C-302

West Palm Beach, Florida 33406-5813

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

R. Scott Laing, Esquire 2072 South Military Trail

West Palm Beach, Florida 33415

STATEMENT OF THE ISSUES

The issues in this case concern whether the Petitioner may lawfully terminate the Respondent's employment as a teacher by reason of alleged acts of misconduct set forth in an Administrative Complaint.

PRELIMINARY STATEMENT

At the final hearing in this case, the Petitioner presented the testimony of five witnesses. The Petitioner also offered numerous exhibits.1 The Respondent testified on her own behalf and also presented the testimony of four other witnesses. The Respondent offered one exhibit, which was received in evidence.

At the conclusion of the hearing, the parties requested, and were allowed, thirty days from the filing of the transcript within which to file proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on October 2, 2000. Thereafter, both parties filed timely Proposed Recommended Orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Ms. Engar Dennard (the Respondent) was employed as a teacher by the Palm Beach County School Board (the Petitioner). During the 1999/2000

   school year, the Respondent was an Emotionally Handicapped (EH) teacher at H. L. Watkins Middle School until she was reassigned on January 6, 2000, pending an investigation.

2. During the 1999/2000 school year, M. M.2 was a seventh grade student at H. L. Watkins Middle School. M. M. was a student in the Respondent's classroom for one period each day. Prior to December 17, 1999, M. M. had not created any behavior problems in the Respondent's classroom, although the Respondent knew that he was sometimes a behavior problem in the classrooms of other teachers.

3. On Friday, December 17, 1999, M. M. misbehaved in the presence of the Respondent. While outside on the school grounds, M. M. made several inappropriate, vulgar, and offensive remarks to a girl who was passing by. Another student told

   M. M. that he should not use that type of language in the presence of the Respondent. M. M. replied by saying, "Fuck her." The Respondent promptly reported M. M.'s conduct to a Crisis Intervention Teacher (CIT) who was nearby.3 The CIT interviewed and redirected M. M.

4. On Monday, December 20, 1999, M. M. and several other students were approximately ten minutes late for class because another teacher had kept them in class longer than usual. The Respondent told all of the late students, including M. M., that, because they were late, they had to get a pass before they could

   come into her class. With the exception of M. M., all of the late students left, presumably to obtain the necessary pass.

   M. M. remained and began to address the Respondent in terms that were confrontational, vulgar, offensive, and obscene.4 The Respondent brought this tirade to an end by closing and locking the classroom door with M. M. on the outside.

5. A moment later, another teacher arrived and explained why the students had been late. The Respondent allowed all of the late students, including M. M., to enter her classroom.

   M. M. did not engage in any further misconduct on December 20, 1999. The Respondent did not write a referral about M. M.'s misconduct on December 20, 1999, because use of inappropriate language was a manifestation of one of M. M.'s handicaps and was an issue targeted in his Individualized Educational Plan (IEP).

6. On December 21, 1999, M. M. arrived at the Respondent's classroom approximately twenty minutes late. All of the other students were engaged in taking a final exam. M. M. entered the classroom quietly, took a seat, and began taking the final exam. Moments later, M. M. began to disturb the class by talking to other students. The Respondent asked him to be quiet, and he complied, but only for a moment. When M. M. again disturbed the class by talking, the Respondent told him that if he could not be quiet, he would have to leave the classroom. In response to the Respondent's admonition, M. M. used confrontational, vulgar,

   and offensive language to tell the Respondent that she could not tell him what to do.5 At this point the Respondent became upset and embarked on a series of inappropriate overreactions to

   M. M.'s misbehavior.

   
   

7. The Respondent began walking towards M. M. and M. M., concerned about what she might do to him, stood up from his desk and began backing away from his desk and from the Respondent. When the Respondent reached the desk that was between her and

   M. M., she violently shoved the desk to one side, causing the desk to fall over on its side. When the Respondent knocked over the desk, M. M. shouted "fuck you" and ran out of the classroom. The Respondent ran out after him.

8. M. M. ran directly to the nearby office of the CIT, Curtis White. As M. M. ran to the back of Mr. White's office, he shouted, "Mr. White, get that lady!" Before Mr. White could figure out what was happening, the Respondent rushed into his office and headed straight for M. M. As the Respondent approached, M. M. backed up as far as he could until he was against a row of boxes stacked against the wall. The Respondent pushed M. M. back against the row of boxes and then grabbed his shirt with one hand and kept him pressed against the boxes while she slapped him in the face three times with her other hand. When the Respondent pushed and slapped M. M., he was shouting

   vulgar and offensive things to her, but his hands were down by his sides and he did not attempt to push or hit the Respondent.

9. Immediately after the Respondent slapped M. M., another student in the CIT office grabbed the Respondent and began pulling her away from M. M. The Respondent turned and began to leave the CIT office. At that point, M. M. balled up his fists and it appeared that he might attempt to hit the Respondent. Yet another student grabbed M. M. and restrained him from following the Respondent.

10. During the course of the events in the CIT office described above, M. M. and the Respondent were offensive and confrontational to each other. The Respondent's remarks to

    M. M. included, "Don't you ever fucking call me that again." The Respondent also told M. M. that she would "beat his ass" if he did not stop saying offensive things to her. The Respondent also said to M. M., "Boy, you don't know who you're messing with! I'll kill your ass!"

11. On at least two prior occasions the Respondent has lost control and engaged in inappropriate conduct directed towards students. In 1999, the Respondent received a five-day suspension without pay for inappropriate physical contact with a student. The inappropriate contact on this occasion was grabbing a student by the face when the student misbehaved in a car. Later in 1999, the Respondent received a verbal reprimand

    with a written notation for throwing water on a student and calling the student a "faggot."

12. Among the consequences of the Respondent's conduct on December 21, 1999, is the notoriety which resulted from publication of information about the incident in a local newspaper. M. M. cried as a result of the incident and was reluctant to return to school. At least one student who witnessed the events in the CIT office was worried that in the future a teacher might strike him.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

14. Pertinent to this case, Section 231.36(6)(a), Florida Statutes, provides that: "Any member of the instructional staff

    . . . [such as Respondent], may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a)." Paragraph (1)(a) defines "just cause" as: "Just cause includes, but is not limited to . . . misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude."

15. Rule 6B-4.009, Florida Administrative Code, defines "immorality," "misconduct in office," and "moral turpitude" as follows:

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

       
       

       * * *

       
       

       (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

16. Pertinent to the charge of "misconduct in office," Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, provides:

    1. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

17. Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, 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.

    
    

18. The Respondent's assaultive and abusive conduct towards M. M. on December 21, 1999, is a clear and severe violation of Rules 6B-1.001(2) and 6B-1.006(3)(a) and (e), Florida Administrative Code, and constitutes "misconduct in office" within the meaning of Rule 6B-4.009(3), Florida Administrative Code. See Tom Gallagher and School Board of Miami-Dade County v. Richard V. Powell, DOAH Case Nos. 97-5828 and 98-2387 (Recommended Order issued October 11, 1999), and Miami-Dade County School Board v. Addie West, DOAH Case

No. 99-1441 (Recommended Order issued March 20, 2000). The severity of the misconduct warrants termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order

terminating the Respondent's employment and denying all relief sought by the Respondent.

DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida.

MICHAEL M. 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 14th day of December, 2000.

ENDNOTES

1/ The following exhibits offered by the Petitioner were received in evidence: 1, 2, portions of 3, 4, 5, 9, 10, 11, 12,

21 through 30, 32, 34, 36, 37, and 38.

2/ Initials have been substituted for the name of the student. The student's full name is known to the parties and is noted elsewhere in the record for those who need to know.

3/ The Crisis Intervention Teacher on December 17, 1999, was Mr. Curtis White. Mr. White was also present during some of the events that took place on December 21, 1999.

4/ On this occasion, M. M. referred to the Respondent as "bitch," and used vulgar language to suggest that the Respondent should perform certain sexual activities. M. M.'s obscene tirade was accompanied by vulgar hand gestures.

5/ On this occasion, M. M.'s verbal spew included referring to the Respondent as "bitch" and responded to her admonition with "fuck you."

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire William L. Reitz, Esquire

Palm Beach County School Board 3318 Forest Hill Road, Suite C-302

West Palm Beach, Florida 33406-5813

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

R. Scott Laing, Esquire 2072 South Military Trail

West Palm Beach, Florida 33415

Dr. Joan Kowal, Superintendent Palm Beach County School Board 3340 Forest Hill Road

West Palm Beach, Florida 33406-5813

Honorable Tom Gallagher Commissioner of Education Department of Education

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

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 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: 00-001011

Orders for Case No: 00-001011